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/"> FD3 



THE BREHON LAWS 



A LEGAL HANDBOOK 



BY 

LAURENCE GINNELL 

OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW 



T, FISHER UNWIN 

PATERNOSTER SQUARE 

MDCX^CXCIV 



When it became known some time ago that I had 
undertaken to lecture on the Brehon Laws before 
the Irish Literary Society, London, one friend con- 
gratulated me on the fine subject I had taken in 
hand, and another on the same day asked me why 
in the world had I chosen such an uninteresting 
subject. To these two friends, and the classes they 
typify, I respectfully dedicate this little volume. 

L.G. 



CONTENTS. 



Chapter I. — Ancient Law . 



„ III. — The Sknchus Mor. 

„ rv.— Legislative Assemblies 
Secfion i. Introductory . 
a. TheFeisofTara 

3. Tailltcnn and Uisneach 

4. The Aenach 

5. The Tribal Assemblies 



Chaptek V. — Classification 01 
Section 1. Intioductory . 

3. Professional Men 



VI 



CONTENTS^ 



Chapter V. {Continued,) 

Sub-Secium i. Preliminary 

2. The Druids. 

3. The Bards . 

4. The Brehons 

5. TheOUamhs 

6. Jurors .... 

Section^. The Flaiths • . . . 
5. Freemen Owning Property 

Sub-Section i. Preliminary. 

2. The Clan System 

3. The Ceiles and the Land 

Laws 

4. Devolution of Property 

5. The Elizabethan Atrocities 

Section 6. Freemen owning no Property . 
7. The Non-Free .... 

Sub-Section i. Preliminary 

2. Both^chs and Sen-Cleithes 

3. The Fuidhirs 



PAGE 

70 

72 

76 

81 

89 

91 

93 
98 

98 
100 

III 
129 

135 

142 
144 

144 
148 

151 



GAELIC 
INITIAL 



P 
D 

N 
B 
A 
B 



I 
A 

A 
U 
R 

I 

F 
T 
F 



Chapter VI. — The Law of Distraining 



Section i. Introductory . 

2. Definition and Scope 

3. Distraint by Fasting 

4. General Procedure 

5. Capacity . 

6. Minutiae • 




L 
A 
G 
O 
I 
S 



• • 



CONTENTS. Vll 

GAELIC 

PAGE INITIAL 

Chapter VII. — Criminal Law . . .177 

5^^//^ I. TheBookof Aicill . . . .177 T 

2. The Law Therein Laid Down . . 184 , I 

3. Capital Punishment .... 199 T 

4. The Maighin Digona. . . . 20S M 

Chapter VIII. — Leges Minores . . .211 

Section i. Marriage 211 L 

2. Fosterage 215 F 

3. Contracts and Wills . . . .219 C 

4. Artisans 223 O 

5. Oaths 225 T 

Chapter IX.— Native, not Roman ... 227 I 

Chapter X.— Conclusion 231 T 




mum 



THE BREHON LAWS, 



CHAPTER I. 



ANCIENT LAW, 

S in law and all other branches 
of learning some knowledge of 
one system is useful in the study 
of any other system, so also one 
cannot well appreciate the relative 
proportions and importance of 
what belongs to one nation with- 
out taking some account of the condition in the same 
respect at the same period of neighbouring nations 
with which a comparison may be instituted. For 
this reason I think our present subject should be in- 
troduced by a preliminary notice of the condition of 

2 




2 THE BR£HON LAWS. 

law in early times in neighbouring nations with 
which we are liable to be compared. We can, how- 
ever, scarcely do more than glance at one such 
nation; and remembering where we are, and the 
circumstances of our country, the English nation 
seems the most appropriate for our purpose. 

The first collection of Saxon laws into writing 
was made under JEthelbirht, king of Kent, after 
Saint Augustine had converted him to Christianity 
and baptised him. This occurred about the begin- 
ning of the seventh century. Saint Augustine having 
arrived in Kent in a.d. 597. iEthelbirht's was a 
collection of the most meagre scraps, such as only 
extreme poverty in this respect could make any 
people consider worth collecting or preserving. 
After that time collections of laws continued to be 
made occasionally in Kent and the varibus little 
kingdoms into which England was then divided; 
but none of them reached respectable dimensions 
until that of Alfred the Great, towards the end of 
the ninth century. Alfred i3 said to have been 
educated in Ireland. His is the earliest collection 
the English nation can show of any real value. 
Besides those given under Alfred's own name, it is 
probable that he may also be credited with the 
so-called Dooms of Ine. 

It is believed that none of the originals of the 
early English laws, or works relating to law, were 
written in the language of the English people, that 
the originals in Saxon times were always in Latin, 
and those of Norman times in Latin or Norman- 



ANCIENT LAW. 3 

Frenchi and that the copies of the Saxon Dooms now 
extant are transcripts from the translations made 
for vulgar use. The originals of Acts of Parliament 
continued to be written in Norman- French down to 
the beginning of the sixteenth century, and the 
records in legal proceedings down to the middle 
of the eighteenth century. The brand of native 
inferiority, first impressed upon the people, con- 
tinued thus long impressed upon the laws the 
people were bound to obey. Even in this year of 
grace, 1894, the royal assent is given to Acts of 
Parliament in words which neither the Queen nor 
her subjects understand, and which never were used 
by any generation of Englishmen. 

Bearing in mind these few facts regarding the 
early condition and historical development of English 
law, we come in a proper mood to consider the most 
archaic system of law and jurisprudence of Western 
Europe, of which many records now exist, namely, 
what are now generally known as the Brehon Laws. 
This is not their real name. Irish Laws, or Gaelic 
Laws, would be a better name for English speakers 
to use ; but the thing meant has always been known 
to Gaelic speakers as Feineachus. A general term 
for all law, without special reference to that of 
Ireland, was Recht. But the law of the Gaels 
was Feineachus. It included Cain Law, being 
that which was enacted or solemnly sanctioned by 
national assemblies, was of universal obligation, 
and could be administered only by professional 
judges ; and it also included Urradhus Law, which 



4 THE BREHON LAWS. 

was law relating to local matters, modified by local 
assemblies and by local customs, and which might 
be administered ' by the Flaiths who were not pro- 
fessional lawyers. 

Inquirers into the native antiquities of Western 
Europe naturally turn to Caesar to learn what was 
the state of things he found existing in Gaul ; and 
if that could be ascertained with certainty, we 
might reasonably assume that the state of things in 
Ireland at that and at a later period was not very 
different. But although it was very good of Caesar 
to write so much as he did, his mind was far too 
much occupied with Caesar to be troubled recording 
many facts relating to mere barbarous life, or with 
adequately checking those recorded. Caesar and 
other Roman writers give it to be understood that 
the Gauls on some occasions sacrificed human 
beings to their gods; and some modern writers 
calmly assume, as a matter beyond question, that 
the Gauls ** sacrificed human beings in hecatombs," 
and that the Druids presided over these horrible 
butcheries. The innate absurdity of such assump- 
tions might have prevented their expression were 
it npt that the ghastly and sensational grows upon 
and takes possession of the mind that conceives it, 
until from excessive fulness the temptation to com- 
municate it becomes irresistible. When communi- 
cated, it strikes the hearer or reader more forcibly 
and effectually than truth, modest and sober, can 
ever hope to do. Remembering what gross and 
scandalous falsehoods are sometimes deliberately 



ANCIENT LAW. 5 

told of our own contemporaries, even by people of 
respectable and sanctimonious exterior, I cannot 
admit that there is any truth in those stories of the 
Gauls and their Druids who are unable to return 
with their explanation. It is probable that either 
Caesar was misinformed or some ceremony, observed 
by the Gauls in putting criminals to death, was 
misinterpreted to him or by him. At all events, 
there is no reason at all to think that human sacri- 
fice ever was practised in Ireland. 

Owing to the isolated geographical position of 
Ireland, references to it by Roman and other 
ancient writers are comparatively few and of a 
vague and general character ; but fortunately a 
very full study of Gaelic Ireland can be made 
from native sources without consulting other 
authorities except for corroboration. Many leading 
facts of Irish history have been quite satisfactorily 
ascertained to the extent of three hundred years 
before Caesar's time. It would, however, be difficult 
to lay down a connected and consequential narrative 
until about a.d. 250, in the reign of King Cormac. 
This was the time at which some of the laws we 
are about to consider were reduced to their present 
form, though they had existed in some other form 
long before. Those laws, as well as the laws com- 
prised in the greater collection made two centuries 
later, had probably existed, as laws, a thousand 
years before Cormac's time. Almost all the Brehon 
Laws had actually reached their full proportions 
and maturity about the time that Alfred was re- 



6 tHE feRferiOM LAWS. 

ducing to order the scraps of elementary law he 
found existing amongst his people. It is with the 
remains of the laws that then existed in Ireland — 
boulders from the dun — that we are mainly con- 
cerned. Needless to say, they were not written 
in a foreign tongue. No foreign mind conceived 
them. No foreign hand enforced them. They 
were made by those who, one would think, ought 
to make them: the Irish. They were made for 
the benefit of those for whose benefit they ought to 
have been made : the Irish. Hence they were good ; 
if not perfect in the abstract, yet good in the sense 
that they were obeyed and regarded as priceless 
treasures, not submitted to as an irksome yoke. 
And the presence or absence of popular sympathy 
with law I take to be a true test of the quality of 
that law and the very touchstone of good govern- 
ment. Originating in the customs of early settlers 
in times beyond the reach of history, these laws 
grew in volume and in perfection down to the time 
mentioned ; after which, though continually applied, 
though copied, re-copied, and commented upon, little 
of substantial value was added to them. They pre- 
vailed over the whole country until the arrival of 
the Anglo-Normans, and they prevailed over the 
whole country except the Pale until the beginning 
of the seventeenth century. In such a great length 
of time they must have undergone more or less 
change ; but the political condition of the country 
during all that time being wholly adverse to true 
development, the actual changes may be taken to 



ANCIENT LAW. 7 

have been the very least possible. In proportion 
as they lost in utility owing to this cause, they now 
gain in value to us as archaic relics. And not 
to us alone, but to continental peoples; to some 
especially, because they claim a common origin with 
with us and have little or no native records reaching 
so far back as ours ; to all, for their philological and 
general antiquarian interest, and because in these 
laws can be studied nearer to their source than 
anyivhere else the ancient legal ideas of a Celtic * 
people expanding free from external control. Other 
Celtic nations were subjected to Roman sway and 
modified by Roman influences, and now little can 
be ascertained regarding their pre- Roman state 
except through Roman sources. The isolated 
position of our country, perhaps a disadvantage 
on the whole, had, at all events, the effect of . 
leaving one nation truly Celtic, while its kindred / 
on the Continent were being transmuted. The 
incursions of the Danes produced the first external 
effect on our laws; but only to the extent of stopping 
their growth and development and throwing what 
may be called the organs of development into 
disorder, from which, owing to historical causes, 
they never recovered. The Danes never obtained 
supreme control over Ireland, as they did over 
England and the North of Gaul, but they harassed 
and plundered the people, lowered the standard 
of religion, morality, and patriotism, and fatally 
smote the institutions of the country, so that from 
the first arrival of the Danes in a.d. 795 the nation 



8 T*HE BREHON LAWS. 

and its laws ceased to progress. The laws were 
petrified and fossilised, and remained at the ex- 
pulsion of the Danes what they had been at their 
arrival. And they remain practically the same 
still ; for to conquer the Danes at Clontarf, though 
hard the task, was easier than to restore efficiency 
and fresh growth to institutions once paralysed, 
or to revive national patriotism, the stagnation of 
which had become normal. Those institutions had 
not recovered their former vigour when the Anglo- 
Normans came, threw the country once more into 
turmoil, and kept it so. The Normans, like the 
Danes, had conquered England and established 
their own institutions there ; but even they never 
conquered the whole of Ireland, and institutions 
of their introduction flourished only in the Pale, a 
small district whose extent varied with the fortunes 
of war, rarely exceeding four of the present Leinster 
counties. The Anglo-Norman settlers in other parts 
of Ireland conformed in the main to the Irish laws, 
with here and there some slight modifications which 
were strictly transgressions. Successive English 
Governments sent over Deputies and Governors, 
nominally to rule Ireland, but really to rule the 
Pale, to create as much dissension as possible 
beyond that limit, and at any rate to maintain a 
foothold. A country so circumstanced, partially 
conquered, the mutilated prey for which two nations 
hungered and tore and thwarted each other, was 
one in which the rational development of law or 
of anything else was scarcely possible. And thus 



ANCIENT LAW. ■ 9 

it comes to pass that the laws may be said to re- 
main to-day substantially what they were before 
the arrival of the Danes more than a thousand 
years ago. 



CHAPTER II. 
THE EXISTING REMAINS OF IRISH LAW. 



OST of the literary remains 
of ancient Ireland that are 
really valuable and charac- 
teristically beautiful appear 
to belong to the same dis- 
tant period; and therefore 
they are highly interesting 
philologically, quite apart 
from the intrinsic beauty of 
some, which is very great. Of all those remains, 
those dealing with law are, considered as literature, 
the least attractive. But their value to the earnest 
student of antiquity is inferior to none, but is 
perhaps superior to all the rest, owing to their 
rigorously authentic character. The charge of 
having been produced or tinged by imagination 
cannot be made against the laws, rules, and customs 
which actually controlled the daily lives, conduct, 
and destinies of our ancestors, and under which 



THE EXlSriJ}6 R^MAtliS OF iRtSH LAW. it 

they laboured, fought, played, and prayed, as 
occasion demanded. These remains at least repre- 
sent what were once the realities of life ; and the 
knowledge and the study of them must, with abso- 
lute certainty, help so far as they go to dispel the 
mist of years. We are brought if possible still 
closer to the actuality of individual life by the suits 
and judgments which are scattered through these 
laws for the purpose of illustrating their principles 
and their application. And while one reads, if 
perchance his taste should be of wider scope, he 
is enabled to gather incidentally much archaeological 
information not strictly legal, but of a kind difficult 
if at all possible to glean from other sources, all 
stamped here with the authenticity of the law, and 
not less valuable for being thus given without design. 
The fact is as expressive as it is painful that, 
beyond the limited operations of one or two stunted 
societies, almost the whole of our Gaelic records, 
laws, and literature remained in manuscript, and 
practically inaccessible until the middle of the 
nineteenth century, and that much of those matei'ials 
remain so even now at the close of the century. 
Most of those manuscript books, and some of the 
longer tracts, the legal as well as the others, refer to 
and quote from other and older books, sometimes by 
name, sometimes by a description which had become 
recognised as a name, as the White Book of such a 
person, the Black Book of such a place, the Yellow 
Book or the Speckled Book of So-and-so; and some- 
times the reference is general, as to other versions or 



12 THE BREHON LAWS. 

other books. From these references it is evident 
that, although we still possess a great deal of 
written matter as compared with other countries, 
far more than we possess has been lost. This is 
not wonderful in the circumstances of Ireland, but 
it is none the less matter for regret. Still, compe- 
tent judges say that our extant manuscript materials 
are, both for antiquity and intrinsic worth, treasures 
such as no nation north of the Alps can boast of. 
Any one who suspects this for a Gaelic exaggeration 
had better visit the Royal Irish Academy and have 
his incredulity speedily and agreeably cured by the 
evidence of his own eyes. Whatever else may be 
said of those remote ancestors of ours, it must be 
admitted that they were singularly devoted- to 
literature, and if the remains of their work have 
a high value and interest for strangers and Teutons, 
to us whose heritage they are, and whose privilege 
and pride it is to call Ireland our native land, they 
should be not alone valuable and interesting, but 
sacred. A people possessing such precious monu- 
ments and indiflferent to them would certainly be 
unworthy of the race and country that produced 
them, and would merit the censure of civilised man- 
kind. Do we value these treasures as we ought ? 
Do we escape the censure or fall under it ? Appar- 
ently we fall under it ; and this while we possess 
the power, and at heart the desire, to escape it. 
In practice we neglect what in theory we venerate ; 
and thus, as in other respects, we perpetuate against 
ourselves as a nation a wrong begun by others* 



THE EXISTING REMAINS OF IRISH LAW,^ I3 

But this extraordinary condition of things has 
not come about spontaneously, as a reader of Mr. 
Standish O'Grady's Heroic Period might infer. Mr. 
O'Grady, in common with all who study the subject, 
laments the fact that Irishmen of the present day 
devote so little attention to the extraordinary wealth 
of historic treasures they possess. But the implied 
assertion is onjy half a truth, and the candour that 
prompts telling half a truth when bitter to Irishmen 
will justify telling the remaining half though it 
should be bitter to Englishmen ; in addition to 
which we, as real inquirers, are entitled to the 
whole truth. Ours is the bitterness of loss, theirs 
the bitterness of guilt. If to be made wince be 
a wholesome discipline for us, it cannot be unwhole- 
some for our neighbours. Our alleged indifference, 
then, so far as it exists, is neither native nor natural 
to us, but is a plant of English culture and a neces- 
sary result of the species of English, rule that Ireland 
has experienced. Both Danes and Normans, the 
former especially, destroyed our manuscripts in 
the course of warlike operations ; but to modem 
Englishmen from Elizabeth's time downwards — 
Ireland's darkest age — to men who came not frankly 
to plunder as the Danes did, but to govern us 
and set us a bright example, some of them with 
Bibles in their hands and Scripture on their lips; 
to these men the distinction is due of having, in 
times of so-called peace and in cold blood, burned 
and destroyed our books, hanged or hunted their 
owners as vermin, made it criminal to teach or learn 



14 THE BREHON LAWS. 

the language in which they were written^ or indeed 
to teach or learn at all ; — ^the alternative or rather 
twofold object of this enlightened statesmanship 
being to drive the Celts out of their native land 
or reduce them to savagery in it. Both policies 
have had a large measure of success; neither has 
completely succeeded. The Irishmen who, when 
their own fortunes and hopes, like those of their 
country, were utterly ruined, risked liberty and life 
itself during that perilous age for the preser\'ation of 
those precious monuments of the past, must be not 
charged with indifference, but credited with devoted- 
ness almost equalling that of the original writers. 
As few ancient nations have been more fruitful in 
original literary effort, so few modern nations have 
shown more attachment to literary treasures than 
the Irish ; and in no other case that I am aware of 
has that natural and creditable attachment been 
subjected to such a terrible strain. On this very 
subject let me quote from Dr. Sullivan, the learned 
editor of O' Curry's Lectures on the Manners and 
Customs of the Ancient Irish, Dr. Sullivan says, 
"During the first part of the eighteenth century 
the possession of an Irish book made the owner 
a suspected person, and was often the cause of his 
ruin. In some parts of the country the tradition 
of the danger incurred by having Irish manujscripts 
lived down to within my own memory ; and I have 
seen Irish manuscripts which had been buried until 
the writing had almost faded, and the margins rotted 
away, to avoid the danger their discovery would en« 



mmmwmmmm^^ 



THE EXISTING REMAINS OP IRISH LAW. 15 

tail at the visit of the local yeomanry." Was not 
that a pretty state of things ? What Dr. Sullivan 
saw was of course but a single isolated instance 
after the real danger bad passed away; but from 
it we may judge how much was destroyed under 
Elizabeth, under Cromwell, under William the Third, 
and throughout the whole of that dark age ; and the 
calculation is materially assisted by the lurid stories 
l^eard by some of us at our fathers' firesides. It 
is morally certain that at the present moment some 
priceless Irish manuscripts are mouldering away in / 
old walls, caves, graves, and other places under the ' 
earth. The causes of our apparent indifference to 
historical treasures are so obvious that they cannot 
possibly have escaped even the most casual and 
careless reader of our modern history ; into the 
soul of every Irishman worthy of the name they 
must be indelibly burnt. Every one who cares at 
all about Ireland knows them, and knows that the 
real wonder is that we have any such treasures 
and that anybody cares for them. Mr. O'Grady 
has an intimate knowledge of all this. Yet he 
seizes an occasion to censure, neither Elizabeth nor 
Cromwell, neither the imported yeomanry who were 
planted on the fat lands of our people nor the 
governors who planted them there, but Irishmen. 
Here surely is perceptible the taint of that bitterly 
anti-Irish institution, Trinity College, Dublin. A 
man educated anywhere else in the world would, 
in the premises, place the blame on other shoulders, 
and if he blamed Irishmen at all in this connection 



l6 THE BREHON LAWS. 

it would be on very different grounds. It does not 
afford much matter for pride on that side or for 
shame on this that the Irish people could be, and 
were, by brute force, robbed of their learning for 
the purpose of civilising them. But brute force 
has not yet robbed them of their intelligence or of 
their love of learning. These, though in a measure 
rendered latent, still exist and will yet respond to 
more rational treatment. The number of persons 
who can read the manuscripts has indeed been 
reduced ; but the number who would risk much 
in their preservation is as large as ever ; and 
certainly their veneration would not be less if the 
vellum were found to smell of turf-smoke contracted 
in the course of such a history. However this may 
be, and whatever may be thought of ourselves, we 
have at least this much matter for legitimate satis- 
faction that the existence of these manuscripts renders 
it impossible for any one with a decent regard for 
truth to charge our ancestors with ignorance. Com- 
mercially it were better for us if the order of merit 
were reversed ; but however low we may have fallen 
we have not reached the depth at which the com- 
mercial view alone is adopted. Neither man nor 
nation lives by bread alone, and if we are satisfied 
that merit rests where it does, no one else has a 
right to complain. 

In spite of the burning and burying and drowning 
of manuscripts, a vast number still exist in public 
libraries and in private collections, in Ireland, in 
England, and on the Continent. Some of those 



THE EXISTING REMAINS OF IRISH LAW. 17 

relating to law are separate works, while others 
are written on the same vellum or otherwise bound 
up together with histories, genealogies, poems, 
religious works, and the like. All have come down 
by successive transcription. Of the more important 
works there are duplicate copies, hardly any of them 
being quite complete, and most of them differing 
slightly in text owing to the causes which similarly 
affect all ancient manuscripts, as want of time or 
want of diligence on the part of transcribers. Most 
of the existing legal manuscripts are believed to 
have been written — that is, copied from older ones 
— between the beginning of the twelfth and the 
end of the fourteenth century. None of the 
originals, which were written in the fifth century, 
now exist ; nor are the existing manuscripts thought 
to have been copied directly from those originals. 
They are considered to be copies of copies. Re- 
peated transcripts had already been made with, on 
each occasion, some modernisation here and there 
of the antiquated phraseology, or with the introduc- 
tion of a gloss or a commentary to render the matter 
intelligible. The laws were originally written in the 
Bearla Feini, the Fenian dialect of Gaelic. As this 
language in course of time tended to become 
obsolete the laws tended to become unintelligible, 
and the tenacious adherence to old forms of expres- 
sion common to all laws had to be severed or 
counteracted in some way. The transcribers did 
not act according to any uniform plan, nor did any 
transcriber continue throughout the work the mode 

3 



} 
I 



l8 THE BREHON LAWS. 

of treatment with which he began, but each from 
time to time translated early into late Gaelic to the 
extent of some words that were in his time difficult, 
or left the original phrase standing, and supplied a 
gloss or a commentary. Each may be considered 
to have done the best that his circumstances per- 
mitted, for writing was not a thousand years ago 
the simple thing it now is. The great antiquity, 
both of the original text and of the commentaries, 
is shown in several ways. Quotations from both are 
found in works admittedly written not later than the 
tenth century. Some parts of these older commen- 
taries, although written later than the text, are 
still very ancient, and besides they contain, as 
quotations or otherwise, some fragments of tradi- 
tional law fully as archaic as any in the text. The 
language being of a highly technical, elliptical and 
abbreviated character too, and devoid of all proper 
definitions, is now scarcely intelligible to speakers 
of what is nominally the same language ; and of 
the few who can read still fewer can confidently 
construe. Even some of the Gaelic transcribers of 
the Middle Ages may possibly have erred in its 
construction. 

Imagine a work treated at one time in the manner 
described, and then, after another century or two 
had elapsed, treated again in a similarly irregular 
fashion by another transcriber — here a literal copy, 
there a translation, in another place a gloss or a 
commentary, to keep pace with the further changes 
in the spoken language, and you will have a fair 



THE EXISTING REMAINS OF IRISH LAW. I9 

idea of the present condition of the Brehon Laws. 
What are thus spoken of under the general name of 
commentaries contain much matter not suggested 
by that title. Many independent decisions and dicta, 
old and current, are inserted under particular texts 
with which some of them have little or no connec- 
tion, but as the most suitable or most convenient 
place the writer could find for them. The most 
valuable of the commentaries were written before 
the existing manuscripts were transcribed, and they 
interpret not alohe obscure passages in the text but 
the substantive law itself. Later commentaries 
were written by various hands on the present manu- 
scripts, and even these may not be all original. 
They were written between the original lines, on 
the margin, at the foot, wherever room was found. 
For the most part a text is given; but in some 
instances the whole of the original text does not 
now exist, only the opening words of passages being 
retained in the existing transcripts. These opening 
words, used as headings or catchwords, are quite 
meaningless in, themselves as they now stand; but 
of course they were full of meaning for those whose 
business it was to know what followed. They are 
now followed by commentaries from which may be 
gathered the substance of the original, as a com- 
mentary on the Lord's Prayer might be headed with 
the words "Our Father." Comments upon law 
and glosses upon words are inserted without any 
apparent attempt to keep them separate, and with 
the latter are frequently given an assortment of 



"»■ *^" 



20 THE BREHON LAWS. 

etymological speculations in which the writers dis- 
play some knowledge of what they call "the four 
principal languages of the worid," Hebrew, Greek, 
Latin, and Gaelic. Derivations of words, of rules, 
and of customs are suggested almost at random, 
and are no more reliable than similar attempts of 
ancient Roman writers ; some of them being clearly 
fabulous and not seriously meant. When the com- 
mentary is mainly etymological and in the nature of 
a translation of the text, and both are translated 
into English side by side, the result in the English 
is an unpleasant tautological repetition of the same 
thing. Sometimes the commentators purport to 
explain the text, start with that apparent object but 
with a relative pronoun for which it is now difficult 
to find an antecedent, plunge in medias res^ and end 
by leaving the whole matter quite as obscure as 
the text had left it. Accounts of the effects of 
particular judgments are also met with, some of 
them legendary, others of real value. According 
to one commentator, "Sencha MacCoU Cluin was 
not wont to pass judgment until he had pondered 
upon it in his breast the night before." This 
probably refers to a judgment in a grave case 
involving human life. Judges of the Hebrew nation 
in early times were accustomed to fast the night 
and morning before passing a death sentence. The 
text of the old laws is fairly self-consistent through- 
out. The commentaries, as might be expected from 
the manner in which they were written by different 
hands at different times, are not always reconcil- 



THE EXISTING REMAINS OF IRISH LAW. 21 

able, and there is a good deal of tiresome repetition 
in them. The translators have found them useful 
in many cases, misleading in some. They are 
interesting throughout. 

The condition just described involves so many 
difficulties in dealing with these laws, that Gaelic 
scholars generally in the last century believed the 
translation of them to have become impossible, the 
key having been lost. If occasionally an educated 
Englishman of the present day finds the legal docu- 
ments in which he is personally concerned hard to 
understand, though assisted by his knowledge of the 
actual facts to which they relate, his knowledge of 
the language and of contemporary life in all its phases, 
how much more difficult must it not be to draw legal 
writings of a distant past from their dust and cob- 
webs and the greater load of impedimenta just 
mentioned, to understand them fully and to render 
them correctly, when the system of life which those 
laws contemplated and provided for has vanished 
from the earth leaving no derivative institutions in 
existence ? 

In 1852 a Royal Commission was appointed to 
translate and publish the Ancient Laws and Institutes 
of Ireland, and thus bring them within the reach of 
English readers* The nature of the undertaking 
may be judged from the difficulties enumerated, 
and many others must have been encountered in the 
actual performance of the work. It is only just that 
we who can now read those laws at our ease should 
remember those difficulties and be grateful to the 



22 THE BREHON LAWS. 

learned men who have surmounted them ; and we 
cannot be surprised to find that, distinguished 
scholars though they were and are, they have 
actually failed to understand some passages which 
they have translated; and they repeatedly empha- 
sise the fact that their translation is in ceitain parts 
conjectural only and must not be taken as final or 
satisfactory. Many technical terms relating to 
status, ranks and degrees, as well as names of fines, 
diseases of horses, &c., are retained in the English 
untranslated; some because the translators were 
unable to satisfy themselves as to the true meaning ; 
others because the words haye no direct or adequate 
equivalents in English, and would demand s^ tedious 
circumlocution each time they hkd to be used; others 
because, although the translators understood them, 
and could find suitable equivalents in English, yet 
remembering that the ancient Irish manuscript 
materials have never in modern times been fully 
investigated, the translators have, with commend- 
able modesty and patriotism, retained the original 
words, appending to them temporary explanations 
to serve until that better time comes for which, with- 
out being politicians, we are all permitted to hope, 
when those laws can be thoroughly analyzed and 
explained. This latter work is one of greater 
difliculty still, and should be undertaken only by 
men free from the preliminary work of translating, 
free from the necessity of making a living, and 
endowed with a keen and unconquerable genius for 
minute research. This was not the work under- 



THE EXISTING REMAINS OP IRISH LAW. 23 

taken by the Commissioners; it still awaits the 
enthusiast. 

That these laws should be found difficult is not 
wonderful, seeing that the English are now unable 
to translate some technical terms in the Saxon laws 
so late as those of the reign of Cnut. 

The Brehon Law Commissioners have already 
published, at different dates as the work proceeded, I ' 
four volumes of the Ancient Laws of Ireland^ and a . 
fifth is now (1894) in the press. The ancient law 
book called the Senchus M5r, or rather all that 
remains of it, was the first selected for publication, 
as being one of the oldest and most important por- 
tions of the Brehon Laws which have escaped 
destruction. This ancient work occupies the whole 
of the first volume of the translations, the whole of 
the second volume, except an appendix of scraps, 
and a portion of the third volume. The part of 
the Senchus Mor given in the first volume deals 
directly with the law of distress, that is the seizure 
by distraint of property for the satisfaction of debt, 
and only incidentally with other subjects. It will 
be seen in the chapter on distress why this branch 
of law required so much space and was given this 
extraordinary prominence. This first volume of the 
translations was published in 1865. The second 
volume, which was published in 1869, contains very 
interesting fac-similes of ancient writing, and more 
than four hundred pages of text of the Senchus Mor, 
consisting of the completion of the law of distress, 
the law of services of hostage sureties (from which I 



24 THE BRBHON LAWS. 

have not drawn for the present occasion) , the law of 
fosterage, the law of tenure, and the law of social 
connections, all of which are of the highest interest. 
The text of this volume is preceded by a long 
dissertation, the object of which is to prove that 
Saint Patrick was a Briton. Interesting though 
this might be as a separate publication, dependent 
for its worth solely on its author's name, I cannot 
but think it out of place here where the question 
cannot be discussed on equal terms. In the third 
volume of the translations, published in 1873, further 
specimens of ancient writing are given. The volume 
contains a long general preface, followed by a special 
introduction to the remaining portion of the Senchus 
Mor — the Corns Bescna — which itself occupies 
seventy-nine pages. This is the conclusion of the 
Senchus Mor so far as it is now known to exist. 
The Corns Bescna, or customary law, is said to have 
been the fifth book of the original work, there being 
then more than five books. Possibly the remaining 
portions exist somewhere, but they have not been 
discovered. The Senchus Mor, as now given to us, 
is not clearly divided into books. Portions of the 
original work having been lost, we may be thankful 
to get the remainder kept together in any way. 
After the conclusion of the Senchus M5r in the third 
volume, we are given nearly one hundred pages of 
preface to the Book of Aicill, followed by the Book of 
Aicill itself, which, with an appendix, occupies over 
five hundred pages. The fourth volume opens with 
a long and elaborate introduction containing a dis- 



1' ^' ■ ' . ^"'W ■«• • Wl^i* ■■ !■»•■»■ W. ■ ^-^ «iai ^M I 11 •« ■< 



THE EXISTING REMAINS OF IRISH LAW. 25 

cussion of the different subjects treated in the 
volume, but dealing especially with the Irish family 
and clan system. The text of this volume consists 
of a number of tracts selected as especially illustrat- 
ing the land laws of the ancient Irish, the law of 
taking possession, and the laws affecting the consti- 
tution of clan and fine and the rights and obligations 
of members of those two organisations. I have no 
knowledge of the contents of the fifth volume now in 
type. 





CHAPTER III. 



THE SENCHUS MOR. 



I 




^ROM the synopsis just given of the 
work already done by the Brehon 
Law Commission, it will be seen 
that the Senchus Mor, or Grand 
Old Law, occupies the first and 
largest part of it. That ancient work was 
designed to be a comprehensive and more 
or less codified embodiment of the laws 
which were of universal obligation over the whole 
country before the arrival of St. PatricL Outside 
it such special rules as occasion demanded were 
made or sanctioned by local assemblies, but all 
were so framed as to harmonise with and be subject 
to the general law as set forth in the Senchus Mor. 
This is a great collection, not of statutes, proclama- 
tions, or commands of any sort, but of laws already 
known and observed from time immemorial ; call 



86 



* . 



THE SENCHUS MOR. ^^ 

them rules or customs if you will, but having the 
force of laws, authoritatively set forth in this work, 
partly by way of direct statements or propositions, 
partly by way of judicial decisions in actual cases. 
The work contains nothing of the harsh, peremptory, 
imperative style of early Roman law. The writers 
do not say. Go, do this, or Go, do that, or If a man 
does so and so, let him be hurled from the Tarpeian 
Rock. No ; they do not enact anything. Pursuing 
the more gentle course of the later Roman lawyers, 
they state what the law is, support the statement 
with the decisions of the wisest Brehons, and then 
leave the law to prevail suo vigore. They explain 
that the men of Erinn having considered the matter 
in times past decided that it was best it should be 
so, and that nobles, chiefs and tribes have loyally 
observed these laws. Any alteration really desired 
could be effected, according to its scope, either in the 
local assembly or in the national assembly. Being 
Plebiscita in the very best sense, not emanating from^ 
the mouth of a tyrant but from the wisest heads of 
the nation, it followed as a natural consequence that 
these laws were obeyed and venerated as the spirit 
by which the nation ought to be ruled. There was 
therefore no occasion for the imperative, none for 
coercion. It was needless to force people to do that 
which they took pride in doing. Besides, the laws 
having been made by the nation itself were, of course, 
designed to promote and secure its wellbeing and 
happiness, and were therefore broadly just and 
generally found favourable to every good purpose. 



28 THE BREHON LAWS. 

One of the Gaelic commentators says of the 
contents of the Senchus Mor, ^' In the Senchus Mor 
were promulgated the four laws^ namely — (i) the 
law of fosterage ; (2) the law relating to free tenants 
and the law relating to base tenants ; (3) the law of 
social relationship ; (4) the binding of all by their 
verbal contracts ; for the world would be in a state 
of confusion if verbal contracts were not binding." 
This is a very inadequate presentation of the con- 
tents of the work. The most important branch of 
law dealt with in the work is wholly omitted from 
this enumeration, and those mentioned are given 
neither in the order of their arrangement nor in that 
of their importance. But the commentary goes on : 
" The binding of all to their good and bad contracts 
prevents the lawlessness of the world. Except the 
five contracts which are dissolved by the Feini, 
even though they be perfected — (i) The contract 
of a labourer without his chief ; (2) the contract of 
a monk without his abbot ; (3) the contract of the 
son of a living father without the father ; (4) the 
contract of a fool or mad woman ; (5) the contract 
of a woman without her husband." "In it was 
established the dire-fine of each one according to his 
dignity ; fpr the world was at an equality until the 
Senchus Mor was established." These few quota- 
tions give an idea of the nature of the commentaries 
and of the scope of the Senchus Mor proper. 

The Senchus Mor was, according to the introduc- 
tion to it, compiled at the suggestion and under 
the supervision of St, Patrick in the time of Kingf 



"^ ^T' 



THE SENCHUS MOR. 29 

Laeghaire (Leary), when Theodosius was Ard-Rig 
of the world. The same introduction places St. 
Patrick's arrival in the ninth year of the reign of 
Theodosius as Ard-Rlg of the world, and in the 
fourth year of the reign of Laeghaire as Ard-Rlg 
of Erinn. Theodosius the Second is the emperor 
meant. While a mere child he succeeded his father 
Arcadius as Emperor of the East in A.D. 407. On 
the death of his uncle Honorius in 423, he became 
Emperor of the West also, and thus Ard-Rlg or 
monarch of the world. Nine years after this date 
was 432, which is also the date of the arrival of 
St. Patrick according to the Four Masters and other 
Irish authorities. Theodosius did not continue 
Emperor of the West during those nine years, but 
voluntarily resigned that position to Valentinian 
the Third and confined himself to the East again. 
However, as the East and West were long ruled 
as two parts of one empire rather than as two 
distinct empires, the same laws being promulgated 
simultaneously in both, the partial and friendly 
abdication of Theodosius may well have escaped 
the notice or comprehension of Irishmen in those 
times. In the commentary it is stated that at the 
end of nine years after the arrival of St. Patrick 
the Senchus Mor was completed. That would be 
A.D. 441. In the Annals of the Four Masters it is 
said, ** The age of Christ 438. The tenth year of 
Laeghaire. The Senchus M5r and Feineachus of 
Ireland were purified and written." The work must 
have extended over several years, and those from 
438 to 441 appear the most probable. 



30 THE BREHON LAWS. 

The laws, being wholly the production of pagans, 
needed some modification to reconcile them with the 
requirements of Christianity. St. Patrick having 
during seven or eight years of missionary work all 
over the country, as well as in the previous years 
of his bondage, learned in what respects the laws 
conflicted with his teaching and thwarted his efforts, 
desired, as well for the material welfare of the 
people as for the success of his mission, to have 
the laws amended. The most permanently and 
universally effective way in which this could be 
done was to have a simultaneous collection and 
revision of the laws decreed by a great assembly 
of the nation, and then to take care that the work 
should be actually performed by men imbued with 
the Christian spirit. Accordingly, " He requested 
the men of Erinn to come to one place to hold 
a conference with him. When they came to the 
conference the Gospel of Christ was preached to 
them all. . . . And when they saw Laeghaire and 
his druids overcome by the great science and 
miracles wrought in the presence of the men of 
Erinn, they bowed down in obedience to the will 
of God and Patrick, in the presence of every chief 
in Erinn. It was then that Dubhthach (pronounced 
Dhoovah) was ordered to exhibit the judgments and 
all the poetry (literature) of Erinn, and every law 
which prevailed amongst the men of Erinn, through 
the law of nature, and the law of seers, and in the 
judgments of the island of Erinn, and in the poets. 
Now the judgments of true nature which the Holy 



THE SENCHUS MOR. 3I 

Spirit had spoken through the mouths of the brehons 
and just poets of the inen of Erinn from the first 
occupation of the island down to the reception of 
the faith were all exhibited by Dubhthach to Patrick. 
What did not clash with the Word of God in the 
written law and in the New Testament, and with 
the consciences of believers, was confirmed in the 
laws of the brehons by the ecclesiastics and the 
chief men of Erinn ; for the law of nature was quite 
right, except the faith and its obligations, and the 
harmony of the Church and the people. And this 
is the Senchus M5r." Yes, such is the Senchus 
Mor, a name which it is said to have received not 
from the magnitude of the work but from the great- 
ness of the number and nobility of the assembly by 
which it was sanctioned. This latter statement, 
however, is rendered doubtful by the existence of 
a Senchus Beg. (Af<?r= Great. Beg=hitilG. Sen* 
chtis is pronounced nearly Shankus). 

It will be observed that the account just quoted 
treats the laws in the plainest possible terms as pre- 
existing, and neither as freshly enacted nor as im- 
ported. In another place the introduction is equally 
explicit on this point. Some of the commentaries 
written centuries later, when Christian zeal was 
greater than critical acumen or historical accuracy, 
attributed the origin of the laws to the influence of 
Cai, an imagined contemporary of Moses, who had 
learned the law of Moses before coming from the 
East. Of course this myth deserves no considera- 
tion. Cai is only another word for ollamh, or sage. 



32 THE BREHON LAWS. 

In other late commentaries, and also in other 
writings in which reference is made to the laws, 
so much importance is, by a, pious exaggeration, 
attached to what Saint Patrick had done that the 
Senchus Mor itself is called the Cain Phadraig, or 
Patrick's law. The abandonment of paganism may 
have caused the discontinuance of some particular 
species of actions, and hence some omissions from 
the statement of the laws; the introduction and 
enthusiastic adoption of Christianity profoundly 
affected the moral and religious life of the people, 
producing eventually new causes and new law ; some 
rules of Canon Law, or rather Church Law, intro- 
duced for ecclesiastical purposes, were quite novel 
and therefore striking, and the Christian spirit 
breathed through the whole law was important; 
but the actual changes were few, and substantially 
the laws remained the same as they had existed for 
centuries before. 

The number of the authors of the Senchus Mor is 
preserved in one of the alternative names given to it 
in the introduction and in some of the commentariea. 
In the introduction it is said, **Nofis therefore is 
the name of the book, that is the knowledge of nine 
persons." And again it says, " Nine persons were 
appointed to arrange this book, namely, Patrick and 
Benen and Cairnech, three bishops ; Laeghaire and 
Core and Daire, three kings ; Rossa mac Trechim, 
a Doctor of Bearla Feini, Dubhthach, a Doctor of 
Bearla Feini and a Poet, and Fergus the Poet." 
Benen, Latinised Benignus, was Saint Patrick's 



■ II ■. • «^*^*"^^^^*"'^>i^WP9«R>««P«lMi^RMHV"HI*W*9PHVOT 



THE SENCHUS MOR, 33 

favourite disciple, and afterwards became a bishop 
and a saint. He was a Munstern^an by birth, but 
was residing at Duleek at the time of Saint Patrick's 
arrival. Cairnech, who is said to have been a native 
of Cornwall, was also a follower of Saint Patrick. 
He, too, became a bishop and a saint, and is 
honoured as such in both the Irish and the English 
calendars. Laeghaire, as already stated, was ard- 
rlg at Tara, and was a son of Niall the Great, known 
also as Niall of the Nine Hostages, who in his time 
had overrun Britain and Gaul in much the same 
fashion as the Danes of a later period overran those 
countries. It is believed that Laeghaire did not 
become a Christian. If he remained an infidel he 
must have been a very tolerant one, for the principal 
officers of his court appear to have become Christian 
like the rest of the nation ; he gave his sanction to 
th^ convening of the assembly which ordered the 
preparation of the Senchus M5r, every facility for 
carrying out the work, and in no way opposed the 
modifications suggested by Saint Patrick ; nor does 
he appear to have raised any obstacle to the propa- 
gation of Christianity. He died at Tara, and was 
buried in one of the mounds there, standing and fully 
armed, facing the south. Core was the King of 
Munster and resided at Cashel. He also is said 
to have remained a pagan. He died in battle. 
Daire was the sub-king of a portion of Ulster, and 
chiefly from the fact that he afterwards gave the site 
of Armagh to Saint Patrick to found his see, it is 
inferred that he must have become a Christian. 

4 



34 THE BREHON LAWS, 

Of the nine nominal authors, the remaining three 
were the learned men who really did the work. 
They were men specially qualified from the legal 
and national point of view, all three being eminent 
in all the learning of the time ; and specially quali- 
fied from Saint Patrick's particular point of view, all 
being converts to Christianity. For Saint Patrick's 
missionary method was first to make a bold attempt 
to convert the learned and powerful. Besides their 
personal qualifications, those three men being 
specially chosen on this solemn occasion for the 
performance of a task of the greatest national im- 
portance, they were assiduously provided with 
whatever manuscript or other material of the kind 
existed, and given every possible assistance in the 
performance of the undertaking. Dubhthach mac 
ua Lugair was at once the chief brehon and chief 
bard of the nation, a position to be reached only by 
means of the highest legal and literary attainments. 
He was a man celebrated for centuries after, on what 
grounds scholars still have some means of judging, 
for several fragments of his poetry are still extant, 
in the libraries of the Royal Irish Academy and 
Trinity College, and in some libraries on the Con- 
tinent. A later Gaelic commentator on the Senchus 
Mor says, " Dubhthach mac ua Lugair put a thread 
of poetry around it for Patrick." 

It was usual to state in ancient Irish manuscript 
books the Name of the Author, the Time of writing, 
the Place of writing, and the Occasion, Cause, or 
Object of writing. It was in accordance with this 



THE SENCHUS MOR. 35 

custom that the introduction to the Senchus Mor gave 
the information just noticed ; and it goes on to tell in 
the following words where the compilers sojourned at 
the different seasons of the year while the work pro- 
ceeded : — " The place of the Senchus Mor was 
Temhair in the summer and in the autumn, on 
account of its cleanness and pleasantness during 
those seasons ; and Rath-guthaird, where the 
stone of Saint Patrick is at this day in Glenn-na- 
Mbodhur, near Nith nemonnach, was the place f 
during the winter and spring, on account of the 
nearness of its firewood and its water, and on 
account of its warmth in the time of winter's 
cold," Temhair, genitive Teamhrac, pronounced 
Tara, is now so called [Gaelic words are frequently / 
adapted to English in the genitive, speakers of i 
modern English being generally ignorant of true 
declension]. Glennavohur has been satisfactorily 
identified as a lovely sheltered glen near Nobber, 
in Meath. A small stream called the Nith flows 
through it, and in this stream still stands the stone 
called Saint Patrick's stone. 

The manuscripts of the Senchus M5r now existing 
are four in number: — 

1. A comparatively full copy among the manu- 
scripts of Trinity College, Dublin. 

2. An extensive fragment in the British Museum. 

3. A large fragment in Trinity College, Dublin. 

4. Another large fragment in Trinity College, 
Dublin. 

All these manuscripts were translated by Dr« 



36 THE BREHON LAWS, 

O'Donovan, and afterwards collated in consultation 
with O'Curry and other Gaelic scholars, breaks and 
obscure passages in one being made up and illus- 
trated respectively from the others, and everything 
done to render the translation as perfect as possible. 

No credit whatsoever is due to Trinity College as 
an institution for the preservation of the legal or 
other ancient documents now stored there. When 
it was dangerous to preserve them, they were pre- 
served by Irish peasants in spite of the danger, in 
spite of the system of government which created the 
danger and of which Trinity College was a part and 
an instrument ; and it was only when Ireland's 
darkest age, which Trinity College had heralded, 
was coming to an end, that most of those ancient 
documents reached their present resting-place. 

Some English critics have raised various objec- 
tions against the possibility of the Senchus Mor 
having been compiled under the supervision of Saint 
Patrick, as, for instance, that he had enough to do 
besides, that he could not have been a member of 
the Irish national assembly, and so on. Personally, 
I do not think these shallow objections deserve any 
notice; but whoever cares to know how little of 
substance there is in them should read Dr. 
Hancock's comments thereon. He shows them to 
be evidence of either ignorance or want of due con- 
sideration. He might have added that they are, in 
some instances, evidence of the old English animus 
which would, if possible, deny the existence of the 
Sechhus Mor itself, and in fact does so by represent- 



THE SENCHUS MOR. 37 

ing that Ireland was wholly without law until 
English law was introduced. Many generations of 
English children have been deliberately taught this 
falsehood at school, and when they have grown up 
the fact that a thing is respectable and Irish is quite 
sufficient proof for them that it does not exist at all. 
It is the very existence of the Senchus Mor and of 
our beautiful illuminated manuscripts that confounds 
such people, and therefore irritates them. Knowing 
that themselves cannot err, they feel that the facts 
are perverse and have got wrong somehow. They 
would willingly lavish money digging for such things 
in the debris of Greece or in the sands of Egypt, but 
if told of its existence in Ireland they duly shrug 
their shoulders and proceed to doubt and criticise 
instead of taking the trouble to learn. A similar 
modification and codification of laws took place in 
Gaul about a quarter of a century earlier than in 
Ireland ; and we have already observed that more 
than a century and a half later Saint Augustine had 
the scraps of Saxon laws that existed in Kent 
collected, arranged, and modified. 

I find it stated that after the laws had been 
collected and revised by the Committee of Nine, they 
did not ipso facto take effect in their altered state 
until sanctioned by the national assembly. No 
authority is given for this statement, nor have I met 
with any in the Senchus Mor itself. But since 
without a positive national ratification and accept- 
ance, although the changes effected were not such 
as could be called revolutionary, they might be 



/ 



38 THE BREHON LAWS. 

disputed in some quarter. As nothing of this sort 
appears to have occurred, and as the universal 
acceptance and stability of the alterations were 
essential to the success of Saint Patrick's work, 
there is little doubt that he took the obvious pre- 
caution of having the alterations sanctioned in the 
most formal and eEfectual manner then known, 
namely, by a great assembly. Whether the second 
assembly was a special one of an unusual character 
like the first, or the ordinary Feis of Tara, there is 
no record to show. 



CHAPTER IV. 

LEGISLATIVE ASSEMBLIES. 

SECTION I. 

INTRODUCTORY. 

OME historical writers go so far as 
to say that there was aa- entire 
p_;^^^:svu absence of legislative power in 
^Mir~T^M^ ancient Ireland. This is quite too 
^^^^^' sweeping, and wholly inconsistent 
with the ascertained facts of the 
period in which we are mainly interested, the period, 
namely, of the compilation of the Brehon code. 
But, unfortunately, it is applicable to the nation, 
though not quite so to the clan, at a subsequent 
period when the national assembly had ceased to 
meet. Authors who appear to be better informed 
maintain that there were five different sorts of legis- 
lative assemblies in ancient Ireland, some of them 



40 THE BREHOK LAWS. 

being for national^ some for provincial, and some 
for local or tribal purposes. No one has yet 
sufficiently investigated the subject to be able to 
set forth with precision what the constitutions, 
duties and powers of those assemblies were. 
// The idea of making laws does not appear to be 
' natural to primitive man. This is proved by the 
early history of many nations gleaned with the 
greatest care ; though a good deal that is theoretical 
might be advanced to the contrary. The prevailing 
sentiment of primitive races always has been, and 
still is, that laws handed down from remote antiquity 
should not be meddled with. The object of the long 
and apologetic preambles of old English Acts of 
Parliament was to soothe this sentiment and recon- 
cile it to the changes about to be enacted. So long 
as such a sentiment prevails, and to its extent, there 
is a reluctance to tamper with laws. I cannot say 
how far this sentiment prevailed in Ireland, but 
it is certain to have existed to some extent; and 
what is given as a Gaelic proverb would go to 
support it — "The old rule transcends the new 
knowledge." But quite apart from this sentiment, 
the simple life of the people, the system of clan and 
^ne, with its network of rights conferred and duties 
imposed, and the just character of the existing laws 
must have reduced to a minimum the necessity for 
direct law-making. 

When nations which had not fallen under subjec- 
tion to a despotism had arrived at the idea of making 
and altering their laws, they at first met in public 



LEGISLATIVE ASSEMBLIES. 4I 

assembly and did it by direct vote of the free and 
qualified citizens, those citizens being on such occa- 
sionsy in some nations, armed and clashing their 
arms in token of final assent. Later on when some 
system of representation or delegation had been 
devised, the assemblies so formed were usually 
given power, not only to make and alter the laws, 
but to enforce them and also to apply them judicially, 
and to determine whether they had or had not been 
observed or violated. There being little direct 
making of new law, but chiefly a gradual adaptation 
and blending in the course of administration, there 
was no clearly marked distinction between legisla- 
tive, executive, and judicial functions. All those 
functions were discharged, for instance, by the 
Saxon Witan; and it was from such a state of 
things, though in very different circumstances, that 
the English Star Chamber arose. The judicial 
powers of the House of Lords and of the Privy 
Council of the present day come, through various 
winding ways, from the same source. These 
observations apply so generally to other nations 
that one would expect to find traces of a similar 
evolution in Ireland ; yet those who have read Irish 
manuscripts most extensively assure us that, so far 
as they have been able to discover, the Irish always 
had courts of justice quite distinct from their legis- 
lative assemblies. Irish courts of justice appear to 
have attained a far more advanced stage of develop- 
ment than Irish legislative assemblies. The 
converse of this would be true of ancient Rome, for 



42 THE BREHON LAWS. 

instance. But some of the Irish assemblies^ perhaps 
all, were still much more than legislative ; or rather 
the work of legislation does not appear to have 
been the sole, or even the principal, duty of any of 
them. In pagan times, at all events, their primary 
and principal duties were of a semi-religious character, 
with legislative, executive, administrative, and social 
duties superadded as occasion arose. And possibly 
the introduction of Christianity effected no greater 
change in the assemblies than the elimination of the 
old religious observances. Some of the assemblies 
were constituted mainly of the Flaiths, or nobles, 
with a small number of other distinguished men, 
and in this respect may be said to have resembled 
the present House of Peers. A national assembly 
of this character met at Tara, and there was in each 
provincial kingdom an assembly constituted on the 
same exclusive model. Some of the assemblies, 
especially those that were local, were probably con- 
stituted of as many heads of families of the Ceile, or 
freehold class, as chose to attend them, the clan 
system conferring the qualification, and there being 
no other form of election. 

The wilful disturbance of any lawfully constituted 
public assembly, national or local, was one of the 
few things for which a fine was not considered 
adequate punishment; the penalty was death. 



SECTION II. 

THE PEIS OF TARA. 



E most important of 

Jl the ancient assem- 

he Feis of Tara. It 

' some to have been 

the year of the world 

J004, oy rung i^iiamn poanla, whose name means 

Sage of Ireland, and whose reign was so propitious 

that "it was difficult for the stalk to bear its com 

in his reign." Others say the Feis originated in 

funeral games. The truth probably is, that it 

originated in funeral games, and was turned to 

the other purposes by Ollamh Fodhla. At all 

events, a national assembly was held at Tara from 

a very early period down to a.d. 560, when the 

last was h^d there under King Dermot, son of 

Fergus. 

The Feis of Tara was an assembly of the leading 



44 THE BREHON LAWS. 

men of the whole island — kings, tanists, flaiths, 
warriors, brehons, chief poets, &c. — not a meeting 
of ail classes of society. It was not ambulatory, 
like the English national assembly of later times, 
held now in one place, now in another, wherever 
the king happened to be ; nor was it haphazard like 
that by which Magna Carta was adopted. Its 
constitution and its place of meeting -were fixed, 
and its times of meeting fairly regular. . It met at 
Tara every third year, three days before the ist of 
November, and it continued in session three days 
after the ist of November. Thus its ordinary 
session lasted for seven days. For some time before 
it ceased, however, it had been summoned less 
frequently. 

There was an important pagan festival observed 
all over the country on the feast of Belltain^, which 
was the ist of May; and at Tara it was the 
occasion of an assembly lasting for some days. 
But those assembled on this occasion seem to 
have been brought together mainly by religious and 
social motives and the attractions of the royal 
court. 

Dr. Joyce is of opinion that some of the ancient 
Irish national assemblies did directly enact laws; 
but that the Feis of Tara was not one of these ; and 
he doubts that the Feis was convened to enact laws, 
and says there is no ancient authority for holding 
that it was. Other authorities do not agree with 
Dr. Joyce in this latter view, and I find himself 
speaking in another place of the summoning of the 



LEGISLATIVE ASSEMBLIES. 45 

Feis on "some urgent occasion." An assembly 
which was summoned on an urgent occasion, when 
there were serious matters to be considered and 
dealt withy was certainly summoned for some 
practical purpose, and must have been in some 
sense the Great Council of the Nation; and if it 
did not enact laws, it must have deliberated on 
national affairs with effect, which is a near approach 
to law-making. In a poem, written in the tenth 
century, the Feis is spoken of as having been con- 
vened "to preserve laws and rules." Edward 
O'Reilly, the Gaelic scholar, calls the Feis "a 
parliament." It may be that neither the Feis of 
Tara nor the other assemblies were convened for 
the express purpose of making new laws, or ever 
professed to make new laws, but only to promulgate, 
reaffirm, retrench, modify or otherwise affect laws 
long known but for some temporary or partial or 
local reason suspended, or to extend to the whole 
kingdom some advantageous local custom, or to 
correct or abrogate some vicious custom, or to 
enforce uniformity among the brehons in case of 
conflicting judicial interpretation, or to restrain on 
the ground of some local or temporary hardship the 
strict enforcement of a law otherwise just. There are 
countless things like these which a national assembly 
could do well, and in doing which it would be 
modifying the law; and although it never called 
itself a legislative assembly, and never claimed to 
make laws, we are still quite justified in calling its 
acts legislative. While many eminent authorities 



46 THE BREHON LAWS. 

hold that the Feis of Tara did these things, Dr. 
Joyce's view cannot be accepted as final. 

Among the other duties performed at the Feis 
was one of some importance even now, but of in- 
finitely more then, because on it the title to rank, 
property, and privileges largely depended. This 
was the comparing and checking of the local pedi- 
grees with each other, and with the Monarch's 
Book, or Register, kept at Tara. Analogous duties 
are now divided between the offices of the Herald 
and the Registrar-General. 

King Dermot died in a.d. 563 (or 565), and after 
his death no Ard-Rig resided at Tara. No separate 
Ard-Rig was any more appointed with the kingdom 
of Meath for his mensal. One of the provincial 
kings usually assumed the office, or at least the 
title, retaining and residing in his own province. 
Tara was deserted, and no place for holding a 
national assembly was ever substituted. To the 
time from this date onward, the saying applies that 
there was no central legislative authority acting for 
the whole island. Once after the reign of Dermot a 
national assembly, or convention, was held at Tara, 
but although legislative it can hardly be called the 
Feis. It was held in the reign of the monarch 
Loingseach about a.d. 697 ; and at the instance 
of Saint Adamnan a law was adopted which, among 
other things, freed women from liability to military 
service, and prohibited their presence in battle. 

After the abandonment of Tara as a royal resi- 
dence, and the consequent discontinuance of a 



LEGISLATIVE ASSEMBLIES. 47 

national assembly, it can hardly be said that one 
concrete state, broad and national in basis and con- 
centrated in executive power, existed in Ireland. As 
though Tara had been the vivifying sun of true 
national life, a summons or word of command from 
any other source never could be and never was 
frankly recognised as the voice of the Ard-Rlg, 
never could and never did inspire the old generous 
patriotism, but often inspired bitter jealousy of 
(as was deemed) a local usurper in the person of the 
nominal Ard-Rig, a desire to dispute his title if 
possible, and to set up a rival. Many holders of 
the office after Dermot's time are marked kings 
'' with opposition" ; and though this opposition was 
not successful, its existence had a disintegrating 
effect among the people, and in law actually reduced 
the king's status and rights in certain cases. True 
national unity, and with it true national security, 
was at an end. The nation was divided into a large 
number of small isolated communities called Tuaths^ 
the territorial extent of which is in many cases 
represented by the modem baronies. These com- 
munities had some of the characteristics of states, 
and fancied themselves such, but were in reality 
fragments of a nation falling asunder, and were 
doomed to become political ruins if not re-united. 
Small nationalities are dear to the Spirit of Freedom, 
but she loves not the aimless subdivision of a nation 
that is really one in race and interest. There always 
had been much independence of action in the several 
tuaths; and this was well so long as it originated 



48 THE BREHON LAWS. 

in worthy aims, or in wholesome and honest rivalry, 
and could be subordinated at once to the interests 
of the tuath, and of the nation by the controlling 
and assimilating influence of a supreme central 
authority. But once that authority ceased to exist 
at Tara it de facto ceased to have any existence ; the 
several tuaths pursued what they deemed their 
several interests, keen in the assertion of a puny 
autonomy but blind and indifferent to the common 
national interest ; and the country sank into the 
condition of England under what is called the 
Heptarchy, when the petty Saxon kingdoms were 
so independent that they were almost constantly at 
war with each other. 

It is thought that one of the events which had 
most influence in bringing about the consolidation 
of England was the reduction of the Church there 
to a single national Church by Theodore of Tarsus, 
when Archbishop of Canterbury, in the latter part of 
seventh century. Before his time, the territorial 
limits of ecclesiastical jurisdiction had varied and 
shifted with the varying fortunes of the little 
kingdoms. He fixed permanently the limits of 
spiritual jurisdiction, and subjected the Church 
throughout England to one central authority. Some 
such service would then have been a boon of in" 
estimable value to Ireland, even if it had come from 
foreign lands ; for while over-centralisation is un- 
doubtedly a great evil, so much of it as is necessary 
to inspire a common patriotism and prevent the 
degradation of local rivalry to sordid jealousy is as 



LEGISLATIVE ASSEMBLIES. 49 

undoubtedly a great good. It happened that the 
Church in Ireland exerted no such influence and 
afforded no such example, for it had from the be- 
ginning accommodated itself to the genius of the 
people to the extent of assuming somewhat of a 
clannish complexion without the national organism 
and outward visible bond with which we are now 
familiar. Each clan aimed at being self-provided, 
self-contained, and self-existing in every respect, 
spiritual and temporal. It built small churches, 
monasteries, and schools ; endowed them with lands, 
stock, and all necessaries, in the same generous 
manner in which, in previous generations, it had 
provided for the Druids and other learned men ; it 
dedicated, as a rule, every first-born son to the 
Church ; and it retained to itself the right of suc- 
cession to all posts, clerical and lay, so long as it 
possessed qualified persons. Indeed, the require- 
ment of qualification can hardly have been always 
very rigorously insisted upon, inasmuch as positions 
of great importance were in many instances filled 
for successive generations by members of the same 
family, as though in a sense hereditary. This latter 
feature, however, was due to a certain general 
tendency, which we shall have a more suitable 
occasion to notice. 

The clan had its bishop too, or an abbot having 
episcopal faculties; and so far as territorial jurisdic- 
tion was known at all his was coterminus with that 
of the clan. The bond between those pastors seems 
to have been of a very vague character, the chief 

S 



50 THE BREHON LAWS. 

connecting link apparently being the purely spiritual 
one of a common faith. The successor of Saint 
Patrick was always Primate, and always held in 
special reverence over the whole country. The 
occupant of that position could have done for 
Ireland what Theodore did for England ; but being 
usually a man of Irish training, and seeing things as 
he had been accustomed to see them and with Irish 
eyes, the necessity for organising the Church on the 
modern principle does not appear to have occurred to 
him with sufficient force to call forth effective action 
in its attainment until a later time, just when the 
nation had become incapable of profiting by the 
example. , 




SECTION III. 

TAILLTENN AND UISNEACH. 



NOTHER very celebrated national 

assembly was that held for many 

centuries at Tailltenn on the 

Blackwater in Meath. It was a 

general assembly of the people — 

that is to say, not restricted to 

men of rank and distinction like 

that at Tara. It was held annually about the 

beginning of August* It also originated in funeral 

games, or rites ; but its subsequent purposes were 

even more manifold than those of the assembly 

at Tara, and they varied from time to time. 

They always included the social and political ; 

and, as at all the great assemblies, the laws were 

always proclaimed anew — that is, read aloud in 

public that they might not be forgotten, and any 

changes in them carefully explained to those 

present. The last of the regular assemblies at 



52 THE BREHON LAWS. 

Tailltenn was held under King Roderick O'Connor 
in A.D. 1168. 

The Hilt of Uisneach, in Westmeath, was, in 
pagan times, the site of a national assembly dis- 
tinctly legislative in character. It was at one 
such assembly, held there about one hundred 
years before the birth of Christ, that a uniform 
law of distress for the whole country was adopted. 
Uisneach has been the site of many political con- 
ferences since then, but I have met with no account 
of an assembly there, purely legislative, since the 
nation became Christian. 




SECTION IV. 



THE ABNACH. 



••••■ 




P local assemblies, the Aenach 
appears to have been the most 
generally important. Aenach is 
the word now translated fair, 
and is, in fact, the present 
Irish term for a cattle - fair. 
But though some such fairs 
originated in aenachs, they bear very little resem- 
blance to the original.. Pair is no translation of 
the word, but is one of those things which one 
would rather have expressed differently. Aenach 
means, first, an assembly ; second, a hill, from 
assemblies meeting on hills ; third, a cattle-fair, 
from such fairs springing up where aenachs once 
were held. Wherever an. aenach was held a fair 
sprang up, but the latter was purely a consequential 
and collateral adjunct to the former. The aenach 
proper was an assembly of all the people of ^ 

■53 



1 



^t -M • ~- 



mm 



54 THE BREHON LAWS. 

district, without distinction of rank, and apparently 
without distinction of clan. Some were held an- 
nually, others triennially. Originating, like all 
the other Irish assemblies, in pagan funeral or 
commemorative rites, the aenach continued even 
in Christian times to meet in a cemetery. There 
is no definite statement that the aenach enacted 
laws ; but one of the many objects of the 
assembly was that the laws might be published, 
and where this was done the effect of the laws 
may have been in some way modified. The 
aenach was also taken advantage of for holding a 
high court of justice for the trial of appeals and 
cases of special difficulty, a Church synod in 
Christian times, a place for musical and bardic 
contests, for the recitation of martial and other 
poetry and family pedigrees, a weapon-show or 
sort of military review, feats of arms, horse-racing, 
athletic sports, and all the games of the time, and, 
of course, for the distribution of honours and prizes 
amongst the successful competitors. So far the 
assembly might be considered the aenach proper. 
But all these proceedings, and the multitude of 
people they brought together and detained in one 
place for a couple of days, rendered a market for 
refreshments necessary ; and this developed into 
a market for all kinds of wares and produce and 
for cattle. Owing to the scarcity of towns and 
shops in those days, this incidental feature of the 
aenach was found very convenient ; and it grew to 
such an extent that it ultimately overshadowed the 



■-■.».. .•i.^jiT, 



LEGISLATIVE ASSEMBLIES. 55 

primary purposes of the aenach, and furnished a 
practical if not an etymological reason for trans- 
lating the word into fair. For the commercial 
purposes of the fair those meetings were frequented 
by merchants, Irish and foreign, and a brief but 
vigorous trade was carried on. 

Aenachs were held in many places throughout the 
country, and the word still forms part of the names 
of a number of places, the best known in this respect 
being Nenagh. But the accident of retaining the 
name is no indication of the relative importance of 
the different aenachs held in those places. For they 
did differ greatly in importance. The aenach of 
Carman was for a long time one of the most cele- 
brated in the South of Ireland. Carman was a place 
near the site of the present town of Wexford, and, 
I believe, is the Irish name of that town. The last 
aenach was held there in a.d. 1033, under Donnchadh 
MacGillaphadraig, Chief of Ossory, who was King 
of Leinster then. Greek merchants are spoken of 
as having attended the aenach of Carman for com- 
mercial purposes. 




SECTION V. 

THE TRIBAL ASSEMBLIES. 

ACH clan had two local assemblies 
of its own for the transaction of its 
ordinary business, legislative and 
administrative. These were the 
authoritative fountains of urradhus 
law. One was called the Cuirmtig 
(pronounced Coorthy), and was pro- 
bably open to alt clansmen who 
paid tribute. In it, for the most part, new pro- 
posals originated. The other was called the Dal, 
and appears to have been open only to heads of 
septs ; possibly to heads of fines also. Dal means 
a tribe or division of a race, but it had also 
the special meaning of an assembly representing 
and acting for the tribe. It was a sort of local 
second chamber, in which bills passed in the first 
had to be ratified before they became legally 
binding. Each clan had also a further assembly 



LEGISLATIVE ASSEMBLIES. 57 

called a Tocomra. This was the assembly in which / 
the king or chief or tanist was elected. So far as ^ 
I can discover it consisted of the same persons as 
the £)«/; but it was summoned by the Bruigh-fer^ 
or Biadhtach (pronounced Beetagh), and met in his 
house. This house was not the private property of 
this officer^ but was considered somewhat as a public 
hall belonging to the clan, and used as occasion 
required for clan purposes^ The Bruigh-fer, or 
Biadhtach, was its occupant and keeper and a clan 
official appointed and empowered to discharge 
various duties of high importance. Besides sum- 
moning the assembly just mentioned, he was bound 
to entertain the king, bishop, bard, judge, and some 
other public functionaries of the clan who were 
privileged to claim entertainment for themselves 
and a number of attendants fixed in each case by 
the law. He was also bound to entertain when 
required, on behalf of the clan, friendly visitors, if for 
any reason the king or chief could not conveniently 
do so ; and he was under certain legal obligations to 
all belated travellers who passed by the way. In 
fact he may be called a public hospitaler, and this 
is almost the literal signification of the word 
Biadhtach. To enable him to comply with these 
extensive requirements, he was allowed about five 
hundred acres of free land, besides various personal 
privileges; and he was, by virtue of his office, 
a magistrate empowered to administer justice in 
certain cases. There were many special provisions 
in the law for the protection of himself and his 



% t .."•.•__*ju»-. 



58 THE BREHON LAWS. 

official property, for he and his house were rightl/ 
regarded as an important public institution. He 
was fancifully supposed to have five doors to his 
house, facing in different directions, always a pot of 
meat boiling, and cattle and pigs on the premises 
fat enough for killing. 

In later centuries ballybetagh, so named from this 
officer, came to mean among the English in Ireland 
a sort of rough measure of land equal to about five 
hundred acres. 



CHAPTER V. 

CLASSIFICATION OF SOCIETY. 

SECTION I. 

INTRODUCTORY. 

ERSONAL rights of the 

political and social order 

, were in ancient Ireland 

arranged upon a graduated 

scale of status, and society 

was divided into a great 

of classes, or grades, quite 

1 many respects according to 

:ion they occupied on this 

le of the Gaelic commentators 

iddle Ages says, among other 

The world was at an equality 

_ Senchus Mor was written." 

That part of his statement may be disregarded. 



^^^^^^^M- 



■ 1 ^ 



60 



THE BREHON LAWS. 



At all events, I go on the assumption that it is 
incorrect; nor do I deem it necessary to state 
my reasons. For our present purpose, however, 
ancient Irish society may conveniently be divided 
into six general classes — (i) the kings of various 
grades ; (2) the professional classes ; (3) the ilaiths, 
who constituted a sort of official nobility; (4) 
freemen possessing property; (5) freemen possess- 
ing none (or very little) ; and (6) the non-free 
classes. But although quite distinct, these classes 
were not utterly exclusive castes such as we read 
of in Eastern countries. It was possible for per- 
sons to rise (or sink, as the case might be) from 
one class to another. Rank and office meant nearly 
the same thing; or perhaps it would be more 
correct to say that wealth, rank, office, power and 
responsibility were considered as co-ordinate ingre- 
dients of status, and therefore always vested in the 
same persons proportionately according to their 
respective positions from the king downwards. 
Progress from one rank to another was no doubt 
effected in a variety of ways, as by duly qualifying 
for a learned profession, by displaying conspicuous 
valour, conspicuous skill in some department, the 
performance of some signal service to the com- 
munity, and the possession of wealth. The first men- 
tioned qualifications were personal and of imme- 
diate effect; this latter one was proprietorial and 
not always immediate. Its frank recognition shows 
that our ancestors were of a far more practical turn 
of mind than they now generally get credit for. 



.a»f^'. ^•>»!?sJ■-ir»^. 



n*T 



CLASSIFICATION OF SOCIETY. 6l 

Their complex political, social, and military system 
was avowedly based on the possession of wealth to 
even a greater extent than the system founded at 
Rome by Servius Tullius. The effect of wealth in 
this respect was arranged and calculated frankly 
upon fixed rules, and not left uncertain and indefi- 
nite as is now generally the case. Such a system 
at least furnished an incentive to thrift and industry* 
Every clansman was eligible, provided he possessed 
sufficient property, and had not forfeited his right by 
crime, to become an Aire (pronounced Arra) ; if he 
owned the qualifying property of a Flaith^ and his 
family had owned that property for three generations, 
he might become a Flaith ; and a Flaith was always 
eligible for the highest office in the state. On the 
other hand^ loss of wealth below a given amount in- 
volved loss of the status to which that amount corre- 
sponded. The Irish system had this advantage over 
the Roman system, that when persons of an inferior 
grade had not sufficient property individually to 
qualify for the full rights of citizenship, as the rights 
of suing, of being jurors, witnesses, sureties, &c., a 
number of them might combine, form a guild or 
partnership, take a piece of land (presumably waste 
land), and this joint property, after they had culti- 
vated it for ten years and fenced it off, would give a 
qualification for one of them to become an Aire, with 
all rights of citizenship and power to act for the 
partnership without external assistance. A similar 
right of forming partnerships was given to artisans 
and others who lived by handicrafts and such forms 



62 THE BREHON LAWS. 

of industry ; and having combined, they could choose 
from among themselves a person to become an aire, 
act for them, and enjoy full rights of citizenship on 
their behalf. These partnerships, or guilds, were a 
very important economic feature in ancient Ireland. 
Each rank in the ascending scale brought to the man 
who had reached it an expansion of liberty, an 
accession of rights and privileges, and a corre- 
sponding increase of liabilities. Also the fines 
recoverable in case of injury depended upon rank ; 
and ratik depended largely upon wealth. 

There are indications that the different classes 
were distinguished by the colours of their dress ; but 
there is no trace of any one having been punished for 
having violated this rule, and I think we shall not 
be far wrong in concluding that the rule strictly 
applied only to public occasions, that it was eqforced 
rather by pride than by enactment, and that its 
extension to private life was due not so much to 
either of these causes as to convenience. 

Let us now consider the various classes in the 
order named. 




THE KINGS. 

^SAR says 

that in Gaul 

some of the 

were ruled by 

with no indi- 

olding the office 

)f the state. But 

y every case he 

appears to have found aspirants to that position, 

the sons or descendants of deposed kings ; and 

if in any case be found neither a king nor an 

aspirant, the fact may have been due to some 

accidental cause, and without inquiring sufficiently 

he may have assumed what he as a Roman would 

expect. At all events, such a state of things does 

not appear to have at any time existed in Ireland or 

in any part of it. The Irish always had a man, not 

an assembly, at the head of the state, and the system 



"WIW 



64 THE BREHON LAWS. 

of electing a Tanist while the holder of the office 
was living, in addition to its making for peace on the 
demise of the crown, made an interregnum of more 
rare occurrence than in countries which "had not 
provided a Tanist in advance. Ireland has on a few 
occasions been ruled by two monarchs jointly ; and 
for a few years after the death of Malachy the 
Second, in^he eleventh century, it was ruled by two 
judges who were not kings. But these were excep- 
tional occurrences, and beyond them kingly rule was 
quite uniform. 

The word Cing occurs in the Gaelic manuscripts 
as the equivalent of Rig ; but Rtg (pronounced Reek) 
is the term generally employed. It is cognate with 
the Latin Regs = Rex. It did not designate pre- 
cisely the same class of official as the word king now 
does. Primarily, and above all things, the rig was 
the head and representative of his race and clan, the 
members of which were rather his kindred whose 
interests it was his duty to serve than subjects to be 
ruled ; and the word rtg being considered as a generic 
term, there was no inconsistency in several ranks 
or classes of rigs flourishing at the same time and 
forming a sort of hierarchy, the members of which 
were mutually dependent on each other. Our 
ancestors aimed, in theory at least, at interde- 
pendence in all departments. 

The lowest oirrzg^ regulus, or sub-king was the 
Rig-Tuatha, a king of one tuath, or district, the 
people of which formed one organic state. As 
already observed, these tuaths were very numerous, 



CLASSIFICATION OF SOCIETY. 65 

but sometimes two or three of them that were 
nearly related had but one king. And where there 
were separate rulers, the term rig was by no means 
rigorously adhered to* Various other descriptive 
terms were employed; but the word ng is simple 
and convenient for our purpose. 

The next in rank was the Rig-Mor-Tuatha. He 
was a ruler of a number of united tuaths, each of 
which might have a rig-tuatha of its own, subject in 
some respects to the Rlg-Mor-Tuatha. 

The next class of king was called the Rig-Cuicidh, 
a word implying that. he had five rig-mor-tuathas 
under him, each of whom in turn might have three, 
four, or more rig-tuaths under him. This was the 
rank of the provincial king. 

So long as the Ard-Rig resided at Tara he may be 
considered, by reason of his exceptional privileges, to 
have formed a separate rank of royalty, or rather its 
head ; but after the abandonment of Tara, since the 
Ard-Rlg was rarely able to enforce his rights, he 
may be considered as belonging to the class of the 
provincial kings. 

The king of each tuath owed allegiance and tribute 
to the Rig-Mor-Tuatha ; the latter owed allegiance 
and tribute to the Rig-Cuicidh ; and the Rig-Cuicidh 
owed allegiance and tribute to the Ard-Rlg. The 
special branch of law affecting the allegiance in each 
case, the amount of the tribute, the amount to be- 
returned by the recipient of the tribute, and other 
constitutional matters, was contained in the Psalter 
of Tara as drawn up under the direction of King 

6 



66 THE BREHON LAWS. 

Cormac, and also in the ancient Book of Rights (if 
this be a different work) ; and much on the same 
subjects will be found in a later Book of Rights which 
still exists and has been translated by 0*Donovan. 
The prerogatives, privileges, duties, and liabilities of 
the various kings within their own territories are 
fully laid down in the course of the general law ; 
and when the clan system was in an efficient con- 
dition, so many forces acted in aid of the law, and a 
neglect of official duty affected so many persons 
that, in ordinary times of peace, such neglect must 
have been rare. The king was not in any sense the 
maker of the law, but its officer, and so limited and 
hemmed round in his office, and so dependent on his 
clan, that it was easier and safer for him to conform 
to the intention of the law and promote the welfare 
of his people than to become either negligent or 
despotic. 

The office of Rig, of whatever rank, was always 
elective, as was the office of king anciently among 
the Saxons. But the choice was restricted by custom 
in the case of the Ard-Rig and provincial kings to a 
narrow circle of the fiaith class called the Riogh- 
' dhamhna or Damna Rig (=Materia Principum), the 
members of which were required to undergo a very 
careful training, mental and physical. It was there- 
fore as a rule confined to the family in possession. 
So long as there was an eligible member of that 
family, the kingship may be said to have been practi- 
cally hereditary in that family, but not in any par- 
ticular member of it An eldest son did not succeed 



CLASSIFICATION OF SOCIETY. 67 

merely because his father had been king, if there 
was an uncle, nephew, brother, cousin, or other 
member of the Damna Rig better fit for the position ; 
and the Tanist was usually such a relative, and not 
a son. The same rules applied to the election of 
sub-kings, but being in rank not so far removed from 
the flaiths the distinctions were not so marked, and 
if the family in possession failed, the flaith best 
qualified was eligible. The law on the subject is 
expressed in the following words : " Every head 
defends its members if it be a goodly head, of 
good deeds, of good morals, exempt, affluent, and 
capable. The body of every head is his tribe, for 
there is no body without a head. The head of 
every tribe, according to the people, should be 
the man of the tribe who is most experienced, 
the most noble, the most wealthy, the most wise, 
the most learned, the most truly popular, the most 
powerful to oppose, the most steadfast to sue for 
profits and to be sued for losses.'' No person not 
of age, stupid, blind, deaf, deformed, or otherwise 
defective in mind or body, or for any reason whatso- 
ever unfit to discharge the duties of the public 
position, or unfit worthily to represent the manhood 
of the community, could be chosen for king or could 
hold the kingship ; even a blemish on the face was a 
disqualification. Here were requirements enough, 
positive and negative, which not every man could 
satisfy. The method of choosing the king was not 
fully one of merit, nor fully elective, nor fully heredi- 
tary, but a combination of all three: and on the 



68 THE BREHON LAWS^ 

whole the office resembled as much that of president 
of a republic as it did that of a modem king. 

The Ard-Rig was not elected by the people at 
large, but by the sub-kings and flaiths of all Ireland, 
the same men who constituted the Feis of Tara. 
The provincial kings were elected by the flaiths and 
aires of their respective provinces. The king of a 
tuath was elected by the flaiths, aires, and probably 
all heads of families in the tuathr The immediate 
position to which the person was elected in each case 
was usually that of Tanaiste or Tanist (= Second), 
the king being living. The Tanist was a successor 
or heir-presumptive elected before his time. He 
sometimes acted as a sort of ^ice-president while the 
king lived. As soon as he in his turn became king, 
a new tanist was elected, so that there was rarely a 
direct election to the office of king. 

The king was, of course, by virtue of his office, 
head of the State in general, whether in arms or in 
peace. He was the fountain of honour and of 
justice, and one of his duties was to appoint a brehonr 
to administer law in his district. He had himself, 
in ordinary times, some magisterial jurisdiction. 
King Cormac, for example, is spoken of as a 
"righteous judge," and all kings are spoken of aa 
hearing cases and pronouncing judgments. The 
nature or extent of this jurisdiction is not clearly 
stated, but I think it had to do mainly with criminal 
law, especially treason and the kindred crimes. If 
from any cause there was in his district no brehon, 
or the brehon was incapacitated, the king himself 



CLASSIFICATION OF SOCIETY. 69 

was bound to act as judge in cases calling for imme- 
diate settlement. 

Wealth is mentioned among the qualifications for 
the kingly office, but in addition to his private wealth 
a considerable amount of land was set apart for the 
use of every holder of the office, what was deemed 
sufficient to support the dignity and bear the ex- 
penses connected with it. On this land there was 
always a dun. A provincial king usually had several 
mensals of this nature with a dun on each. " The 
residence of a king is always a dun, and there is no 
dun without a king.'* 




SECTION III. 

PROFESSIONAL MEN. 
Sub-Section i. — Preliminary. 

ROFESSIONAL men next 
demand our attention, and 
of these especially the 
Brehons, The laws were 
administered in Ireland by 
brehons, so called while so 
It is not clear that there was 
times, as there was in later, a 
order of men so engaged and 
wise — ^judges and nothing else, 
e is some reason for thinking 
was an after-growth. In the 

-lanuscripts the words druid, 

bard, and brekon appear to be applied to the same 
persons interchangeably and as if synonymous. 



CLASSIFICATION OF SOCIETY. 7I 

The terms are, however, not synonymous, and 
never were, even when applied to the same per- 
son. One person being a very learned man might 
be all three; and probably ^this was so sometimes, 
and was always looked for in pre-Christian times. 
But, of course, its continuance was neither neces- . 
sary nor possible. In some of the manuscripts it 
is said that legal jurisdiction was vested in the 
bards, the "just bards " are spoken of as custodians 
of the law, and the old law itself is called by a 
name which may be translated " Bardic Law." 
Further, a man who administered the law judicially, 
whether bard or druid or neither, is called a 
Breitheam or judge; genitive Breitkeamhutn, pro- 
nounced Brehon {another instance of the adapta- 
tion to English of the genitive of a Gaelic word). 
Here we have three apparently different classes of 
men connected with the law in some way; hut in 
what that connection consisted, and what were their 
mutual relations, or rather their actual distinctions, 
is not clearly stated. 



Sub-Sedim z.—TJu Druids. 

' RUIDS next claim con- 
sideration. One modern 
writer tells us that the 
Druids were "magicians 
p and nothing more." Ma- 
gicians, yes; "and nothing 
more" mnst be rejected. 
The popular view of what 
they were is more nearly accurate than this. The 
druids were much more. They were above all 
things the priests of such religion as existed ; and 
in that character were quite as highly venerated 
and as influential in Ireland as Csesar found them 
in Gaul. Their religion, if their many strange 
and conflicting views and practices may be con- 
sidered as one system and called a religion, was, 
to our minds, degraded and degrading, and their 
ceremonies may appear to us silly or worse; we 
may think Crom Cruach very unworthy of worship ; 



CLASSIFICATION OF SOCIETY. 73 

but what does all this matter if that religion y 
was dear to the people as the essence of a spiritual / 
life and the prime requisite for attaining eternal I 
happiness and glory, and if it yielded to its 
adherents any of the consolations which religion 
affords and for which the human heart yearns ? It 
cannot be doubted that in Ireland, as in Gaul, the 
most learned, the most sage, and the most virtuous 
men of the nation were druids or priests of that 
religion. Their superior learning enabled them to 
become more than priests; magicians if you will, 
but certainly philosophers, astronomers, judges, 
bards, literary men, musicians, physicians, seers or 
diviners of future events, and many other things, 
and may have given them a choice, almost a 
monopoly, of all the offices which required learning. 
Their magic consisted mainly in their superior know- 
ledge in times of general simplicity; and I think 
they deserve to be called a learned priesthood. In 
those circumstances most of the brehons, perhaps 
nearly all, were druids; but all druids were not 
brehons, for the office of brehon was but one of a 
choice of accessory offices which their learning 
opened to the druids. This seems to account 
sufficiently for the connection of the druids with 
the law, and for the apparent opinion of the writers 
of old that the terms druid and brehon might be 
used interchangeably. 

It is impossible now to determine whether at 
any time the office of brehon was restricted to the 
druids as an exclusive legal priesthood. Probably 



74 THE BREHON LAWS. 

there never was a positive restriction, but only the 
practical one involved in the requirement of learn- 
ing, which few laymen could then satisfy. But 
the administration of the law not being the special 
function of the druids as such, but only a sort of 
secondary string to their bow, they may be supposed 
to have bestowed more attention upon whatever 
their special function was than upon law. The 
law remained in the Bearla Feini, the old classical 
Gaelic in which it had been originally composed, 
and constituted a large and important part of the 
Filidecht or higher academic course through which 
both druids and bards should pass, and in which 
they should attain a certain standard of proficiency 
before being admitted to their respective professions. 
As that old language gradually became antiquated 
the laws became less accessible and less intelligible 
to others than those learned men; and yet the 
school knowledge of it, which had sufficed for them 
and was little more than an accomplishment, did not 
always enable them to deal satisfactorily with the 
legal difficulties of everyday life. It is easy to conceive 
that in such circumstances the law may sometimes 
have failed in its primary object of bringing justice 
home to the people. An evident want arose. The 
combined effect of the negligence of those two classes 
of men and the growing importance of law must 
have made it clear that the administration of justice 
ought not to be secondary to anything, but deserved 
the special and exclusive study of a distinct profes- 
sion. To this profession laymen applied themselves 



CLASSIFICATION OF SOCIETY. 75 

in increasing numbers as the druids withdrew^ until 
the administration of the law had got almost wholly 
into non-sacerdotal hands. Not being occupied with 
religion or with any other profession^ nor hampered 
with the trivial formalities which the sacerdotal 
mind has always been so prone to create and 
magnify, these men could breathe a freer air, enter 
more sympathetically into the views and feelings of 
both parties to a suit, and arrive at a decision more 
satisfactory to both, than is as a rule possible to 
men who, though in the world, are best when they 
are not of it. 

In Rome also the pagan priests were the earliest 
judges and custodians of the law. They greatly 
hampered its justice and its efficiency by the inven- 
tion of useless technicalities, until at length, in 
451 B.C., the Romans resolved to reduce their laws 
into a written and fixed form, and called upon the 
priests to produce the laws for that purpose ; when, 
lo, it was found that the priests, after all, really had 
no substantive laws to produce, that they had com- 
pletely lost what it had been their business and their 
pretence to guard, and had guarded nothing but 
their own technical inventions, mainly concerned 
with mere procedure (or its prevention), and mainly 
detrimental to the free flow of justice. Hence the 
Romans in drawing up their Twelve Tables were 
obliged to resort to laymen of common-sense, and 
even to consult neighbouring nations as to the very 
rudiments of law. 



Sub-Section 3.— TAc Bards. 



OW with regard to the Files or 
Bards. They did not, like the 
druids, become extinct on the 
extirpation of ps^anism, but con- 
, tinued to flourish and to form 
important class down to 
modem times. They were anciently much 
more than the present popular conception 
of them implies, for they were the his- 
torians, genealogists, teachers, and literary 
1 of the nation, some of them also being 
druids and some judges; but as regards the 
bards of Christian times, after the monks 
had taken learning and teaching under their 
special care, the present conception of the bards 
is fairly accurate, and therefore their connection 
with law is not at first sight obvious. Little or 
no such connection continued to exist, and the 
presence of the bards in battle and their thrilling 







CLASSIFICATION OF SOCIETY. ^^ 

writings relative thereto remind one more of the (j 
war correspondents of our own time than of ^* 
lawyers. Anciently some of them were judges 
in addition to being bards, as we have seen in 
the case of Dubhthach; but these instances were 
few even then, and not at all sufficient to explain 
the intimate connection between the bards and the 
older law. The secret of that connection lies else- 
where. Their chief connection with law was not 
in the character of judges, but in their proper 
character of bards. In this their true character 
there was then a use for them amounting almost 
to necessity. Accustomed as we are to writing, 
printing, and other modes of preserving expressions 
of thought, we are liable to forget that the laws we 
are considering originated when those arts were 
unknown, when in northern climates men preserved 
their learning in their heads instead of on their 
shelves, and communicated it by their tongues 
instead of by ink and paper. Verse always has 
been, and still is, easily committed to memory and 
retained there ; and the more harmonious it is, the 
more effective and reliable for this purpose. To 
give this quality to things of value, as law, history, 
and genealogy, not to speak of pure literature, to 
which this quality was then natural, was in such a 
time as important a service as a bard could render 
to his nation. It imprinted those things, not on 
paper, but on brains; fixed them in heads where 
otherwise they would not abide, and rendered them 
capable of being transmitted from person to person, 



78 THE BREHON LAWS. 

from clan to clan, from generation to genera tion^ 
from times far beyond the reach of history until 
well into historic times. This use of poetry was 
clearly very important, and hence the originals of 
almost all our very early manuscripts, on law as 
well as on other subjects, were in verse. It was 
the duty of the bards to reduce the laws into 
rhythmical form, and they retained that function 
in their hands for some time after the actual neces- 
sity for it had ceased to exist. Nothing but a sense 
of duty could induce a body of learned men to take 
such wonderful trouble with a subject so unattrac- 
tive and unpromising. This fully accounts for the 
connection of the bards with our ancient law and 
explains the sense in which they were its custodians; 
and it also accounts for the abnormal development 
of the bardic profession in Ireland, and for the extra- 
ordinary amount of archaic Gaelic literature preserved. 
The combined effect of metre and rhyme was to 
render tradition at once easy and reliable. To take 
the Senchus Mor for example, though now arranged 
prose-like on the paper, portions of the text are in 
regular verse ; not merely in metre like blank verse, 
but in rhyme. The editors say that whether this is 
due to the fact that two of the compilers of the 
Senchus Mor were poets, or to the fact that the 
pre-existing laws of Ireland were mostly in rhyme, 
or partly to both these causes, is an open question. 
Perhaps so. I think most students of the subject 
will for themselves consider the question as closed, 
and feel quite satisfied that the ancient laws of 



CLASSIFICATION OP SOCIETY. 79 

Ireland were mostly in rhymei or in an alliterative 
assonance having all the properties of rhyme for 
ar and memory, from necessity before the art of 
writing was known, and from the unexhausted force 
of a long-established usage after that art had become 
known. The art of writing became known to some 
extent in Ireland about the first Christian century, 
or perhaps a little earlier; its practice was en- 
couraged and extended under King Cormac, in the 
third century, and from his time downwards; but 
it was not until the introduction of Christianity in 
the fifth century that writing became general. 
During this period, at all events, the time-honoured 
custom of making and retaining the laws in rhyme 
undoubtedly held its ground ; so that not alone did 
the compilers of the Senchus M5r find the laws in 
rhyme, but they found the old usage still of quite 
sufiicient force to require from themselves a sem- 
blance of reducing into rhyme any new laws then 
made, or modifications of the old. Rhymed laws 
were still the ideal aimed at. Accordingly there 
is reason to believe that the whole text of the 
Senchus Mor, written in the fifth century, was in 
rhyme, and in the introduction, written at a later 
date, is included Dubhthach's fine poem as the most 
suitable introduction. This was probably the only 
introduction in the first instance, the work being 
then metrical and rhymed throughout. Wherever 
in the text the rhyme is now absent or broken the 
reader may conclude that there the various tran- 
scribers have been carrying on the operations I have 



8o THE BREHON LAWS. 

endeavoured to explain. Finding it necessary to 
substitute new for obsolete words, and to translate 
some passages, and no longer a practical reason for 
reducing these emendations into rhyme, that cere- 
mony was omitted, and thus while the law was 
simplified the verse was spoiled. The commentaries 
were not composed by bards at all, and so far as 
they are original they are not rhymed ; but in them 
are frequently quoted fragments of traditional law 
for the purpose of driving home their conclusions, 
and such fragments are nearly all in rhymed metre. 
The ancient cultivation of memory is one of the 
arts that have fallen into disrepute. It was carried, 
in other countries as well as in Ireland, to a degi'ee 
of perfection now hardly credible. Nor were metre 
and alliteration, as subsidiary to it, peculiar to 
Ireland or to the Irish laws. The perfection 
attained in these was peculiar, and rhyme was 
peculiar. To the absence of this bardic perfection 
the poverty of other nations in archaic literature is 
due: to its presence our wealth in that respect is 
due. For other nations the remote past is a blank : 
for us it lives, mainly through the skill of the bards. 
The bards were liberally provided for by their con- 
temporaries: we may enjoy their labour without 
having to pay for it. 



b-Section 4, — The Brehons. 

INING at the point where 
all three qualities were 
possessed and all three 
functions discharged by one 
he functions had expanded 
:ome differentiated until they 

three separate professions, 

followed by three distinct classes of men — Druids, 
Bards, and Brehons — this last being the newest 
class in the order of development. So long as 
this development proceeded, the legal profession 
, was perfectly open to every one who chose to study 
the law. A druid, or a bard, or a man who was 
neither, was perfectly free on qualifying himself to 
become a brehon. It is now impossible to fix the 
date at which this development was complete, and 
the brehons stood recognised as a professional class 
apart. &om druids and bards. It was probably 
complete in the first century of the Christian era, 

7 



82 THE BREHON LAWS. 

certainly while Ireland was still wholly pagan ; and 
there can be no doubt that it was a distinct advan- 
tage to the people and to the nation. 

Later on a further change occurred (for it can 
hardly be called a development)^ namely^ the legal 
profession, in common with most professions, arts 
and callings, becanie to a large extent hereditary, 
not by force of law, but by force of custom, and in 
obedience to a general tendency of the times. There 
never was a law in Ireland actually making any 
profession or calling hereditary, or imposing any 
restriction whatever on the natural right to learn 
and practise what one pleased. The tendency was 
spontaneous, or due to some general cause. In our 
view it was a backward tendency. But that proves 
nothing. The same may be said of many move- 
ments far more modern. Our desire is to see, so 
far as we can, our ancestors as they really were, 
not to make them fit into theories of what they 
should have been. 

Whatever may have been the prevailing force in 
making callings become hereditary, no doubt it was 
materially assisted by the custom of rewarding 
distinguished merit, and the performance of public 
duties, with gifts of free land. This is a species of 
reward not unknown in modern times ; but it was 
obviously more convenient in ancient times when 
there was little or no money with which to reward 
men. Men occupying official positions, from the 
king downwards, were provided with free lands. 
Many of those positions were attainable only by 



CLASSIFICATION OF SOCIETY. 83 

careful training and marked ability of the kind 
required. Bards, brehons, and other public oflBcers, 
men distinguished in the healing and other arts, 
and in the handicrafts most important for the well- 
being and security of the community, were similarly 
provided for. A man having once acquired land in 
this way would have a strong motive for transmitting 
his profession to his children, since it was only by 
doing so he could transmit the land to them ; in 
addition to which, his own was the particular branch 
of knowledge which he could transmit, and they 
learn with least trouble and least expense. Here 
was a two-fold motive for making both the profes- 
sion and the land attached to it hereditary. 

In the case of the brehon's office this powerful 
cause did not operate alone. There were attached 
to the office manuscripts, in those early times of 
great value as legal documents, and perhaps still 
more precious privately as family heirlooms, the 
preservation of which, after his death, was an object 
of the most intense solicitude to every brehon 
worthy of the name. It was but human that a 
brehon should desire to entrust to his own offspring 
a charge so sacred, and but human that they, for 
his sake and for its own intrinsic value, should 
bestow more, care upon such a trust than could be 
expected from strangers. In respect of the preser- 
vation of documents, and perhaps in other respects 
also, we of later times are much indebted to the 
hereditary custom, however that custom may in 
practice have militated against efficiency. 



84 THE BREHON LAWS. 

Still, although these causes must have acted 
powerfully, the office of brehon may, in obedience 
to the general tendency of the time, have become 
hereditary in cases where they did not exist. 
There were at all times non-official brehons, who 
were not attached to any clan and who held no land 
as a reward, but lived independently by their profes- 
sion, and yet in these cases also the profession became 
hereditary. 

Nor does the fact of having become hereditary 
appear to have led to the degradation and abuse 
which might be expected from it in our time, nor 
to have rendered the office of brehon more easily 
accessible than before. The essential standard of 
knowledge was in no degree lowered. The prepara- 
tory course of study continued to extend to twenty 
years. And of course the moral and other require- 
ments were in no degree relaxed. Success as a 
brehon waited upon ability alone, and failure was 
attended by so many risks that the profession offered 
no attraction for unqualified persons. The brehons, 
like the old Saxon judges, but unlike modern judges, 
were always liable to damages, disgrace, and other 
grave punishments if their judgments were illegal or 
unjust. 

The law says, " No person is qualified to plead a 
Cause in the high court unless he is skilled in every 
department of legal science." There were several 
classes of advocates or pleaders, corresponding, per- 
haps, to Queen's Counsel and Barristers of the 
present day. There were, besides these, professional 



CLASSIFICATION OF SOCIETY, 85 

lawyers of an inferior class somewhat analogous to 
solicitors. It has been stated that one uniform 
course of study was required, no matter what branch 
of law a man intended to follow ; that having gone 
through that course he might become a brehon, an 
ollamh, an advocate, or a law-agent, according to 
his personal predilection, ability, and prospects of 
practice. In my opinion, this is correct only pro 
tanto. The course may have begun with the duties 
of the law-agent, proceeding upward in succeeding 
years until at the end of the brehon's term it in- 
cluded all branches of law, and it may have been 
the same so far as the other gentlemen pursued it; but 
the brehon alone pursued it exhaustively, and 
devoted twenty years of his life to that task. There 
were, however, various distinctions between brehons 
and advocates, and among the brehons themselves, 
which are so difficult to follow that modern writers 
are not at all agreed about them. In a society 
wholly different from ours in its elements and con- 
struction those distinctions must have been made 
on principles different from any now operating. It 
does not follow that they were not proper distinc- 
tions. Our embarrassment is not necessarily due 
to defect in those laws, but to our ignorance of them, 
to our want of some missing link, perhaps many 
missing links, in their consequential chain. 

Each king, and each chief who was sufficiently 
powerful, maintained a brehon, who was in a sense 
the brehon of the territory. But the law did not 
require this if there was an unofficial brehon in tho' 



86 THE BREHON LAWS. 

district. The brehonship was rather a profession 
than a state department. The judicial institutions 
were not strictly permanent with a regular order 
of succession maintained systematically as men 
dropped off, and wielding power given and sustained 
by the state, as we now see. When an official' 
brehon had died or ceased to act, unless there were 
cases pending, or somebody sought his office with 
the land that might have attached to it, there was 
no immediate reason for appointing a successor ; and 
with regard to non-official brehons, when they were 
removed by death or otherwise they can hardly be 
said to have successors at all, or if so said it was 
Nature supplied them in her own good time. The 
scope of a brehon's jurisdiction is not laid down in 
the law, simply because no brehon had exclusive 
jurisdiction anywhere, whether he was provided with 
free land or not, whether his office had become here- 
ditary or not. The jurisdiction of official and of non- 
official brehon alike was generally determined by 
the suitors. A defendant should consent to have 
the case raised against him tried by some brehon, 
or else judgment would go against him by default. 
With this limitation the jurisdiction was purely con- 
sensual; the parties were free to settle their case 
in private or to submit it to any brehon they pleased. 
Of the brehons within reach, if more than one, 
suitors displayed a preference for one beyond the 
rest, and probably as a rule their choice was deter- 
mined by his superior aptitude in unravelling knotty 
problems and giving decisions consonant with justice. 



CLASSIFICATION OF SOCIETY. 87 

Thus the brehon's position resembled that of an 
eminent Roman jurisprudens, whose opinion was 
eagerly sought and paid for by people in legal diffi- 
culties. He heard the case, gave it the necessary 
consideration, and pronounced a decision in accor- 
dance with law and justice. This decision, though 
called a judgment, and eminently entitled to that 
'name, was not precisely what the word judgment 
means with us. It was rather a declaration of law 
and justice as applied to the facts before him, rather 
an award founded in each particular case on a sub- 
mission to arbitration. There was no public officer 
whose duty is was to enforce the judgment when 
given. The successful party was left to execute it 
himself. In doing this he was assisted by the in- 
herent equity of the particular judgment itself, by 
the force of an immemorial law universally obeyed, 
by public opinion informed by the generally pre- 
valent love of justice, by the defendant's knowledge 
that delay, evasion, or resistance would be futile, 
would disgrace him and increase the penalty, and, 
above all, by that self-adjusting network of duties 
and obligations, involved in, and enforced by, the 
clan system. These combined forces went far to 
render executive officers of the law, as sheriffs, 
bailiffs, and police, unnecessary. They were prac- 
tically irresistible, for they could go the length 
of outlawing a man and rendering his life and all 
he possessed worthless to him if he dared to with- 
stand the execution of what a brehon had declared 
to be the demands of law and justice. They were 



88 THE BREHON LAWS. 

quite as effectual as is what we now call the arm of 
the law, notwithstanding John Austin's theory, that 
there can be no law except it be the command of a 
sovereign. 

There were certain cases which a brehon provided 
with free land should hear and determine without 
payment. Beyond these cases, the official brehon 
and every other who tried a case were entitled to 
be paid by the unsuccessful litigant certain fees, 
which were fixed by the law according to the nature 
of the cases, the trouble they entailed, and, in civil 
cases, the amount of property involved. The amount 
of the fee was a matter of calculation, according to 
certain well-known rules, and it was always included 
in the total amount to be paid under the judgment 
by the unsuccessful party. In criminal cases one- 
twelfth of the beaten party's honour-price was the 
fee to be paid to the brehon. If the person charged 
was found guilty he should pay this in addition to 
any other fine imposed : if the accuser failed to 
sustain his charge he had, if so sentenced, lo pay 
the judge in addition to compensating the accused, 
and there was no occasion as now for a second trial. 

When one brehon had adjudicated on a matter 
submitted to him, there could be no appeal to 
another brehon of the same rank ; but there might 
be an appeal to a higher court, provided the 
appellant gave security. The grounds of appeal 
most frequently noticed are " sudden judgments," 
meaning probably those given without due con- 
sideration. If the facts of a case had undergone 



*■• I ^^iW 



tmm^irv^* i •■■ 



CLASSIFICATION OF SOCIETY. 



89 



a material change after trial and judgment, as if 
the defendant in a criminal case had been tried and 
fined for assault, and after the judgment the person 
assaulted had died, a new trial might be had. In 
giving judgment in this second trial the judge would, 
of course, have regard to what was done under the 
first judgment. 



Sub-Section 5. — The Ollamhs, 



m »»».«»»« 




CERTAIN writer boldly tells 
his readers that there were three 
class of judges, the Ollamh (pro- 
nounced Ullav) being the highest 
or chief judge. Most other 
authorities on the subject say that 
the brehons were judges, the 
ollamhs professors or teachers of law. The latter 
view IS correct subject to the following obser- 
vations. Every brehon was an ollamh, inasmuch 
as he was obliged to obtain the degree of ollamh 
before he could become a brehon. Hence a man 
might practise as a brehon and teach law in his 
own house as an ollamh; and one who had dis- 
tinguished himself in both these respects might be 
regarded as, in a sense, a chief judge*^ But the use 
of that designation is misleading. Both ollamhs 
and brehons might as well be called bards on the 
ground that both were obliged to take a degree in 
poetry. A loose application tends to involve those 



go THE BREHON LAWS. 

terms in the confusion from which we have just 
taken the trouble to extricate them. Ollamh prac- 
tically meant a doctor, professor, or teacher of any 
branch of the Filidecht taught in the higher schools. 
It meant a possessor of knowledge whose profession 
it was to impart that knowledge. The right to the 
distinction was acquired by a course of study ex- 
tending over twelve years* " hard work," followed 
by a public examination ; and the distinction was 
formally conferred by the king or chief of the dis- 
trict; after which the ollamh ranked next to the 
king or chief in the order of precedence, acquired a 
number of valuable privileges, was respected by the 
community, and highly favoured by the law. Every 
king or chief who could afford it selected one dis- 
tinguished ollamh of each branch of knowledge, and 
maintained this staff of specialists at his court in 
order to be able to deal with all matters affecting 
his interests and those of his people. These men 
were very generously provided for, indeed extrava- 
gantly one would think. Other ollamhs made their 
living by teaching independently. 



I 




Sub-Section 6. — Jurors. 



RE passing quite away from 
the legal system, a class of 
men, though not pro- 
fessional, connected with an 
nt branch of the law may be 
They were drawn from 
the lay community in each cinel or 
tuath, and to twelve of them, as to a sort of jury, 
certain matters in dispute requiring knowledge 
other than legal were submitted, as, for instance, 
the manner in which land should be newly appor- 
tioned under the Irish system of gavelkind. The 
law determined the proportions, provided the quality 
of the land was uniform and other circumstances 
equal. As this would rarely happen in practice, 
these twelve men determined the actual proportions. 
They also arranged in the early part of each year 
how the common lands of each sept should be used 
that year. What the relations of those men to the 



92 



THE BREHON LAWS. 



clan were^ what the qualification for the office, how 
the office descended^ &c., are left open questions ; 
and this is perhaps the best thing to do in the 
present neglected condition of the Brehon Laws. 
Still I should not be surprised if it were found on 
inquiry that it was not an office at all, but a power 
inherent in a certain status, and that every flaith-fine, 
or paterfamilias, was entitled to exercise it unless he 
had in some way forfeited his title. 




SECTION IV. 

THE FLAITHS. 

■^■" 'jAITH may be pronounced Flah. The 
Flaiths correspooded in some respects 
A to modern nobles, and like them 
J originated in an official aristocracy. 
Theoretically they were public officers 
of their respective clans, each being 
e the ruler and representative of a sept, 
elected on the same principle as the 
required similar qualifications accord- 
ing to rank, and were provided proportionately with 
free lands to enable them to support the dignity and 
perform the duties of the office. They also, like 
the kings, were allowed to hold at the same time 
all other property which they might have had or 
might subsequently inherit or otherwise acquire ; 
and their position gave them some facilities of 
requisition which other men did not possess. Their 
official land was in law indivisible; an apparent 



*94 THE BREHON LAWS. 

restriction which in practice became decidedly 
advantageous to them as a class, as we shall 
see. 

The law gave the right of succession to the most 
worthy member of the fine of the actual flaith, sub- 
ject to the right of the clan to determine by election 
what member of the fine was in fact the most worthy. 
Hence the flaith's successor might not be his son, 
though he had sons, but might be a brother, nephew, 
cousin, or other member of the fine ; and while the 
flaith's private property was on his death divisible 
among the members of his j^n^ like that of any other 
individual, his official property with all the per- 
manent structures thereon descended undivided to 
his successor, in addition to any share of the private 
property which might fall to that same person as a 
member of the fine. In course of time the heredi- 
tary principle encroached upon and choked the 
elective, the latter fell into desuetude, and the 
number of flaiths ceased to correspond to the 
number of septs. From the office and the land 
attached to it having been held successively by 
several succeeding generations of the same family, 
the flaith gradually learned to regard the land as 
his own private property, and the people gradually 
acquiesced ; and I find it laid down by a modern 
writer as the distinguishing mark [of a flaith, that 
he paid no rent, and that a man who paid no rent 
was a flaith though he owned but a single acre. 
This writer completely lost sight of the fact that 
the flaith was properly an ofiGicial, and the land he 



CLASSIFICATION OF SOCIETY. 95 

held official land, and not his private property at all. 
The system under which he lived, and of which he 
formed a part, laid upon him certain duties for which 
the lands and revenues assigned him were a pro- 
vision and a reward, and it was only through the 
decay and collapse of that system that he could 
venture to call those lands and revenues his own. 
The nature of his duties can most conveniently be 
explained when discussing the next succeeding class 
of society towards whom most of them were due and 
owing ; and there also it will become very obvious 
that there was no such inadequate provision made 
for a flaith as a single acre would have been. It 
will suffice to mention here that a very high private- 
property qualification should have been possessed by 
the family for three successive generations before one 
could become a flaith at all ; and then the official 
property was given in addition to that. In fact, the 
flaiths were rather too well provided for, and were 
so favourably circumstanced that ultimately they 
almost supplanted the clan as owners of every- 
thingr 

As the sea attracts all waters, as power and wealth 
attract to themselves more power and more wealth, 
the flaith class tended to become great at the ex- 
pense of the people beneatlji them. They were 
constantly taking liberties with, and extending their 
claims over, land to which they had no just title ; 
and the law under which official property descended 
contributed to the same result. The idea of private 
property in land was developing and gathering 



/ 



96 THE BREHON LAWS. 

strength, and land was generally becoming settled 
under it. The title of every holder, once temporary, 
was hardening into ownership, and the old owner- 
ship of the clan was vanishing, becoming in ordinary 
cases little more than a superior jurisdiction the 
exercise of which was rarely invokedL During the 
time of transition I think the flaith class encroached 
upon the rights not alone of those below them but 
of those above them also ; that it was chiefly their 
greed, pride, and disloyalty which led to the break- 
up of the Irish Monarchy ; and that it was for many 
centuries in their power to restore that monarchy, 
and with it an independent nationality, had they 
been sufficiently patriotic. 

The flaiths, by virtue of their office, had legal 
jurisdiction in all matters coming under Urradhus 
law, or law locally modified. There were various 
grades or ranks among the flaiths as among modern 
nobles, but determined by the number of clansmen 
who paid them tribute ; and the territorial limits of 
a flaith' s jurisdiction was wide or narrow as his rank 
was high or low. When the legal system was in 
proper working order, plaints involving Cain law, 
that is, the law contained in the Senchus Mor and 
administered by the brehons, were required to be 
lodged at the residence of the Aire-ard before being 
submitted to the brehons. 

A great many varieties of aires are mentioned in 
the laws ; but generally the aire (pronounced arra) 
appears to have been considered as the type of the 
full citizen in possession of full legal rights. It was 



CLASSIFICATION OP SOCIETY. 9? 

a term not strictly applied, rather a measure of status 
which different classes might attain than the designar 
tion of any particular class. The flaiths and those 
approaching that rank were aires ; and I think every 
head of afine was in status an aire though not so 
called. The aire most frequently spoken of and the 
aire-desa were recent accessions to the flaith class 
from the C^ile class, belonging by birth and descent 
to the latter, but possessing sufficient property quali- 
fication for the former; and, so far as there was 
progress, may be considered as in a state of tran- 
sition. The aire-desa was the lowest of the flaith 
class. Part of his qualification was to have ten 
free clansmen paying tribute to him. The numbers 
paying tribute to the different grades of flaiths 
ranged from ten up to forty, the flaith's rank, 
honour-price, &c., ranging proportionately. The 
bo-aire was a man whose wealth consisted mainly 
in cattle. He was not a flaith. 



SECTION V. 

FREEMEN OWNING PROPERTY. 

Sub-Section i. — Preliminary. 

N pursuance of our plan we now proceed 
to consider the free clansmen who held 
property. Property, for the most part, 
meant land, the cattle fed upon land, and 
the crops grown upon land. Our an- 
cestors all lived in the country and mainly 
by industries connected with land. They 
had numerous villages, the earliest of 
which are indicated by the still existing 
raths; but they had few towns so large 
as to form distinct communities with life 
and interest different from those of the 
country. Our oldest maritime cities are 
of Danish origin. Hence the Brehon Laws are 
in the main applicable only to country life, and 
contain few rules specially applicable to town com- 



CLASSIFICATION OF SOCIETY. 99 

munities. The vast majority of freemen owning 
property were farmers, called C6iles, and for sim- 
plicity of description we will take this class as the 
standard. 

The contemporary institutions of any given country 
are always so interwoven that it is difficult to discuss 
them separately, and impossible to give a complete 
account of one without giving as part of it some 
account of others connected with it. This is em- 
phatically true of a country where society is 
organised on the system of clan, sept, and fine. That 
system is as soil in which all other institutions, like 
trees, have their roots. I have already had to antici- 
pate myself in some respects. In order not to do so 
to a confusing extent, and in order to turn from hence 
on subsequent matters all the light we can, it will 
be necessary to deal, however briefly, with the clan 
system before treating specially of the Chiles, and 
to deal with the land system while discussing the 
Chiles. 




Sub-Section 2. — The Clan System. 

KNOWLEDGE of the real nature 
of the clan or tribal system would 
be a master-key to much con- 
nected with ancient Ireland that 
is now mysterious, and would re- 
move many stumbling-blocks, if 
not all. Possibly the lost books, 
and lost portions of books, would have furnished this 
key and given us glimpses of life of which without 
them we can never dream. They would, at the very 
least, have illuminated some obscure passages in the 
existing remains which are now subjects of doubt and 
liable to misinterpretation. But without them full 
knowledge of this most interesting subject is lost to 
us, and if it be recoverable at all can only be 
so by the expenditure of much labour of many 
minds. For although the existing remains are 
in many parts extremely familiar with social and 
domestic economy, providing even for the legal 
enforcement of some duties which with us are of 
merely moral obligation, still the information given. 



CLASSIFICATION OF SOCIETY. lOI 

clear enough no doubt for those for whom it was 
intended, who knew its objects as self-evident facts 
and were themselves in the current of actual life, is 
in many respects not clear to us who grope in the 
dry channel through which that current passed. 
On certain points no information at all is given ; and 
although great trouble is taken to explain other 
points, the writers, so to speak, do not begin at the 
beginning, but start on an assumed basis of know- 
ledge which we no longer possess. We seek in vain 
for the why and the wherefore of things which 
apparently were so well known to the writers and 
their contemporaries that they did not need to be 
stated; and though much is said round and round 
a subject, the fundamental facts are evasive. From 
the time the system began to break up the prolonged 
agony of the nation has prevented the production of 
a writer capable of rescuing its fading features from 
oblivion. We are therefore obliged to pass over the 
subject very lightly and with uncertain tread, though 
it is really the most interesting branch, not alone 
of the law, but of the whole social and political 
economy. A few facts only appear to be pretty 
conclusively ascertained. 

Mr. Seebohm, a diligent searcher after the truths 
of antiquity so far as regards England, comes to 
the conclusion that the tribal system was almost, 
perhaps wholly, universal — that is to say, that 
every nation has had its tribal period. He says, '^It 
is confined to no race, to no continent, and to 
no quarter of the globe. Almost every people in 



102 



THE BRQHON LAWS. 



f 



I 



I 



historic or prehistoric times has passed or is passing 
through its stages." This is so ; but while in con- 
tinental countries, owing to international friction 
and other external influences, tribes generally 
suffered disintregation and dissolution, and 
ultimately disappeared, in Ireland, owing mainly 
to its remoteness, insularity, and freedom from 
those influences, the tribal system, while becoming 
Hibemicised in some respects, perfected and 
strengthened itself, and attained a highly artistic 
degree of development such as it probably never 
reached on any continent; and it was made, and 
long continued to be, the basis of right, duty, 
property, law, and civilisation itself. 

Tuath, Cindy and Clann^ were the words used 
interchangeably to denote what we now call in- 
differently a clan or tribe. It resembled the Gens 
of ancient Rome in that all the members of it 
claimed descent from a remote fine, and from a 
common ancestor as head of that fine, and were 
therefore kinsfolk, were entitled severally to various 
rights dependent on the degree of relationship and 
other facts, and formed collectively a state, political 
and proprietorial, with a distinct municipal indi- 
viduality and life, with a legislature of its own and 
an army in gremio ; but in these two latter respects 
slightly subject to, and forming a member of, a 
superior state consisting of a federation of similar 
communities. Each clan was composed of a number 
of septs, and each sept was composed of a number 
of finea. Kinship was the web and bond of society 



CLASSIFICATION OF SOCIETY. IO3 

throughout the whole clan ; and all lesser rights 
whatsoever were subject to those of the clan. 
Theoretically it was a true kinship of blood, but 
in practice it may have been to some extent one 
of obsorption or adoption. Strangers settling in 
the district, conducting themselves well, and inter- 
marrying with the clan, were after a few generations 
indistinguishable from it. A chief or a flaith also 
occasionally wished to confer on a stranger the 
dignity and advantages of clanship — practically 
meaning citizenship — and when he had obtained 
the sanction of the clan assemblies, the stranger 
was adopted in the presence of the assembled clan 
by public proclamation. In the course of time the 
name Ttiath came to be applied to the district 
occupied by a clan, and Cinel (pronounced Kinnel) 
was then the word used to denote the clan itself. 
Fine (pronounced Finna) was also sometimes used 
in the broad sense of clan, and this was not strictly 
incorrect since every clan originated in a small fine; 
but the word fine properly meant one of a number of 
sub-organisms of which the clan consisted. It was 
a. miniature clan, and in fact the germ of a clan and 
the real social and legal unit. It was considerably 
more comprehensive than our word family. It has 
been compared with the Roman familia, but it was 
more comprehensive than even that When complete 
it consisted of the Flaith-fine (also called Ceann-fine), 
and sixteen other male members, old members not 
ceasing to belong to it until sufiGicient new members 
had been born or adopted into it, upon which event 



104 THE BREHON LAWS. 

happening the old were in rotation thrust out to the 
sept, and perhaps began to form nev^ fines. Women, 
children, and servants, did not enter into this com- 
putation. The flaith'fincy or paterfamilias, was the 
head and most important member of the group, in 
some sense its guardian and protector, and was the 
only member in full possession and free exercise of 
all the rights of citizenship. All the members had 
certain distinct and well-recognised rights, and, if of 
full age, were sui juris and mutually liable to and for 
each other ; but so long as they remained in the fine, 
the immediate exercise of some of their rights was 
vested in the flaith-fine, who should act for them or 
in whose name they should act. " No person who 
is under protection is qualified to sue." 

There are various conflicting theories as to the 
persons of whom and the manner in which this 
organism was composed, and even as to whether 
it was in fact ever composed or ever existed except 
as a legal fiction ; and no explanation of it or con- 
jecture about it is free from diflSculty. Having 
regard, however, to the frequent mention of it, and 
of the " seventeen men " of whom it consisted, by 
various legal and other writers at times far apart 
and in various connections, it is quite impossible 
to believe that it was fictitious; but in practice it 
may not often have attained or long retained that 
perfect organisation which the law contemplated ; 
and the law itself may have contemplated different 
things at different times. Whether the members of 
it became members on their birth, or on attaining 



CLASSIFICATION OF SOCIETY. IO5 

manhood and acquiring property ; whether they 
included or represented all within the 'fifth degree 
of relationship, or all within the seventeenth degree, 
are matters in dispute. Without presuming to settle 
them, let us construct a provisional fine for the 
purpose of conveying some idea of what it was 
like. When complete it consisted of " seventeen 
men" who were always classified in the following 
manner : — 

1. The Geilfine consisted of the flaith-fine and his 
four sons or other nearest male relatives, most of 
whose rights were vested in him, who on his death 
were entitled to. the largest share of his property, 
and would succeed to the largest portion of his 
responsibilities. 

2. The Deirbhfine consisted of the four male 
members next to the foregoing in degree of relation- 
ship to the flaith-fincy upon whom, contingently, a 
smaller share of his property and responsibilities 
devolved. 

3. The larfine consisted of the four males whose 
degree of relationship was still farther removed, and 
upon whom, contingently, still less property and 
responsibility devolved. 

4. The Innfine consisted of four males the furthest 
removed from the flaith-fine, upon whom, contin- 
gently, the smallest portion of his property and 
responsibility devolved. 

On the birth of a new male member in the first 
of these groups (or, according to a more probable 
theory, on his becoming a man and owner of 'pro- 



I06 THE BREHON LAWS. 

perty), the eldest member of that group was crushed 
out to the second group, the eldest member of the 
second group was crushed out to the third, the 
eldest member of the third was crushed out to the 
fourth, and the eldest member of the fourth, if he 
had not died, was crushed out of the fine altogether, 
and became an ordinary member of the sept^ or clan, 
with no special rights or responsibilities in connec- 
tion with his former flaith-fine. Thus the members 
of the groups were cast off like the coats of an onion, 
not all at once, but gradually, the groups themselves 
remaining complete all the time, and never exceeding 
four members each. And as they were cast off they 
suffered a loss of rights, but gained in freedom of 
action and freedom from liabilities, and the flaifh- 
fine ceased to represent them, act for them, or be 
responsible for them. The members of the fine also 
owed a mutual responsibility to each other, were 
bound in certain cases to enter into suretiship for 
each other, were liable to compensate for crimes 
committed by any one of them if the criminal failed 
to do so ; and in general the law held that there was 
a solidarity among them. A member who became a 
criminal was, of course, primarily liable for his own 
crimes. It would also appear that a person other- 
wise entitled to become a member in a certain event, 
forfeited that right, with all the advantages attached 
to it, by crime. My own opinion is that the members 
of the fine were all full-grown men living on divisions 
of a farm which had been originally one ; yet that 
the group included only persons within the fifth or 



CLASSIFICATION OF SOCIETY. I07 

sixth degree of kindred, and did not extend to the 
seventeenth, and that the organisation was a natural 
outcome of the ordinary sentiment of family affec- 
tion, perhaps somewhat intensified, but at all events 
systematised and enforced by law. 

Various other fines are mentioned, and the word 
anc is used in a number of combinations ; but the 
organism provisionally outlined is the only one of 
the name of real importance ; and the text, after 
stating much about the seventeen men, adds, '' It is 
then family relations cease." Presumably it was 
then the rights of inheritance and the dangers of 
liability also ceased. Where in the system one 
should look for the exact counterpart of the modem 
family is not clear ; nor is it clearly known whether 
the number of women, their presence or absence, at 
all affected the constitution of the^n^. The original 
purpose and main object of the whole system are, for 
lack of true knowledge, matters of much conjecture. 
It is probable that the system continued perfect only 
so long as the Celtic race remained pure and pre- / 
dominant, and that it became disorganised in the 
course of the thirteenth century. 

The Sept was an intermediate organism between 
the fine and the clan. It consisted of a number of 
fineSy as the clan consisted of a number of septs. It 
was one of the divisions of the clan assigned a 
specific part of the territory, and over it and this 
district a fl^ith was supposed to preside. No rule is 
stated, and I think none existed, as to the number of 
persons or oi fines that might be in a sept The right 



I08 THE BREHON LAWS. 

of the sept to undisturbed possession of its assigned 
portion of the territory was greater than that of the 
fine^ was subject only to that of the clan, and was 
very rarely interfered with. 

The rules of kinship by which the clan was formed 
were the same rules by which status was determined ; 
and this status in turn determined what a man's 
rights and obligations were, and largely supplied the 
place of contract and of laws affecting the disposi- 
tion and devolution of property. The clan system 
aimed at creating and arranging definite rights and 
liabilities for every member of the clan at his birth, 
instead of leaving individuals to arrange these 
matters in their own ways. Kinship with the clan 
was the first qualification for the kingship, as for 
every minor oflSce ; and the king was the ofiScer of 
the clan, and the type of its manhood, not its despot. 
Whatever its constitution, the clan when formed was 
a complete organic and legal entity or corporation, 
half social, half political, was proprietor of every- 
thing and supreme everywhere within its territory. 
Within historical times the clan owned the land 
— part of the land directly and immediately, the 
remainder ultimately. In earlier times it is very 
probable that the clan owned all the land and every 
other kind of property absolutely. It is very pro- 
bable that at first neither individual property in 
land nor even the property of the fine in it was 
recognised, but only that of the clan, and that these 
smaller rights of property were at first temporary 
usufructs, which subsequently became permanent 



II I ■■■i^^ii^i^ n I 1 <i«p 1^ fT'f ■* I i"i>" !■! VI •». ^'■Tr^^™^^^^^^^«»"^»^"^P"^i^i^H 



CLASSIFICATION OF SOCIETY. lOQ 

encroachments on the rights of the clan. At no 
time did the land belong either to the state in the 
broad sense or to the individual absolutely. Each 
clan was a distinct organism in itself, and the land 
was its property — its absolute property at first, till 
parts of it were encroached upon by the growth of 
private rights, but its ultimate property so long as 
the clan existed in its integrity. The clan was the 
all-important thing. After the clan in degree of 
importance came the sept, where one existed, and 
then the fine. The individual was left little to do 
but to fill the position assigned him and conform to 
the system. Among ordinary people the flaith-fine 
was the most important; but even his duties and 
liabilities were so clearly laid down as part of the 
system itself that he does not seem to have been left 
a wide discretion. This insignificance of the indi- 
vidual seems to us calculated to stifie the best 
qualities of man and to prevent all progress; and 
the whole system seems to be one of disintegration 
rather than of cohesion, and therefore adverse to the 
growth and continued existence of a true state. Its 
influence is so all-pervading in public as well as in 
private life that it amounts to a different system of 
civilisation from ours.. The average young man from 
Oxford or Cambridge, or even from Dublin Uni- 
versity, with a mind full of fancy theories, may say 
lightly that it is the absence of civilisation. It is 
the absence of his civilisation, but not necessarily 
of all. There existed a spiritual bond, purer and 
more potent if wisely utilised than the modern one 



no THE BREHON LAWS. r 



of a common nationality, the creature of power. [ 

And, however the fact is to be explained, the finest 
qualities of our race have been exhibited under the 
clan system. They may not have been due to it, 
but it did not prevent them. Having regard to the 
number of its inhabitants at the time, Ireland pro- 
duced more distinguished men under the clan system 
than it has since done. This is a fact which no 
fancy theories can displace. It proves that, re- 
stricted though the clan system appears to us, it in 
fact afforded sufficient margin for a person to dis- 
tinguish himself. A large measure of individual 
capacity was not alone attainable, but attained. 
The bravest and most skilful warriors, the most 
zealous and successful missionaries, poets, musi- 
cians, and literary men in astonishing numbers and 
of astonishing power, taste, and skill, even some 
artists whose works have scarcely ever been sur- 
passed, and above all a virtuous and happy people, 
grew up and flourished under the shadow, or the 
light— whichever it was — of the clan system. All 
this could not have been the absence of civilisation, 
but really was a true civilisation different from ours. 
Our modem notions are therefore an unreliable 
standard by which to test or judge the clan system. 
It is entitled, like every other system, to be judged 
by its results. So judged it has produced much 
which we are proud to inherit and might be proud 
to produce. It is quite certain, too, that in those 
far-off times the clan, with the rights it gave and 
maintained, formed the greatest bulwark of the poor 



CLASSIFICATION OF SOCIETY. Ill 

and weak; and this explains to some extent the 
grateful tenacity with which the poor long clung to 
it. If it restricted men's natural right to make what 
bargains they pleased, the restriction applied most 
to the strong and wealthy ; and if it arranged people's 
affairs for them to a large extent, the service was 
obviously most useful to those who, from any cause, 
were feeble. In this way it effectually prevented 
that violent antagonism of classes which is at once 
the danger and the disgrace of modern civilisation. 

Sub-Section 3. — The Ceiles and the Land Laws. 



TUATH, cinel, or clan occupied 
a given district, delimited by 
natural boundaries, as mountains 
and rivers, or by arbitrary bound- 
aries first determined by the for- 
tunes of war or otherwise. This 
whole district belonged, originally 
and ultimately, to the clan, as a corporation or 
community, and it was divided in the following 
manner for the benefit of that community : — Part 
was allotted to the king or chieftain, part to the 
flaiths and other public officers, part to the Chiles 
or free clansmen, for their respective homesteads, 
part called the Cumhal Senorba was placed under 
the control of the king or chieftain for the main- 
tenance of the poor, old, and incapable members 
of the clan, and part called the Fearan Pine, 




112 THE BRBHON LAWS, 

or tribe's quarter, was retained as the common 
land of the whole clan, which every member of 
the clan was free and equally entitled, sub modo, 
to use. None of this last was held as private 
property, except for one year, at the end of 
which it would become common again. There 
was also a portion of land, the extent of which 
was diminishing with the progress of ages, which 
occupied an intermediate position between the 
private land and the common land in this, that, 
on the death of a holder, all the land of this class 
held by his sept was divided anew. The land, as 
regards quality, generally ranged in the order set 
out, beginning with the king's best, which was 
usually that longest in cultivation, and ending with 
the common waste. The land held in common, 
however, was not all bad land or waste; some of 
it was cultivated and some meadowed. Land 
holders may be divided into three general classes, 
namely ; first, all who held land officially, including 
the king, the professional men, and the flaiths; 
second, the C6iles, or ordinary free clansmen, who 
held land (as one may say) by birthright, who were 
the bone and muscle of the community, paid fixed 
tributes for the maintenance of the state, and formed 
its army in time of war ; third, the non-free people, 
some of whom held land under contracts. 

It is said by one recent writer that the Chiles were 
freemen who placed themselves under the protec- 
tion of a flaith ; and another likens them to the 
Roman Clientes^ which is substantially the same 



CLASSIFICATION OF SOCIETY. 113 

thing. I believe this to be a direct inversion of 
what they were. They were the ordinary free 
clansmen, who, as such, held land by as good a 
title as then existed, by as good a title as that 
of the flaith himself. Their rights, to their proper 
extent, originated in the law like his, and were as 
fully secured by the law as his. Instead of placing 
themselves under the protection of a flaith in the 
sense suggested, they placed, or at all events had 
the right to place, a flaith of their own choosing 
and of their own kindred over them to represent 
them and act for them as occasion required, and 
to protect, not appropriate, their rights. The two 
views may practically amount to the same thing if 
the period viewed is that of the clan's decay ; but 
one is offensive and repugnant to an efficient clan 
system, while the other harmonises with that system 
and is not offensive. 

Another modern writer says that the power of 
disposing of one's own several property was un- 
limited. He does not state his authority; nor 
what he means by property ; nor whether he means 
property in land or property in chattels. The power 
of disposing of property in chattels has in all ages 
and countries been freer than the power of dis- 
posing of land. Property in ancient Ireland appears 
to have been divided into, not real and personal, 
but separable and inseparable. The inseparable 
included all lands and a great deal of chattels, and 
the separable the remainder of the chattels; and 
although this division may not have been made 

9 



114 '^HB BRBHON LAWS. 

specially with reference to the right of disposal, 
it is pretty safe to assume that that right coincided 
with it. In many parts of the law, in both text 
and commentary, there is clear evidence that the 
individual had not an absolute and unfettered right 
of entering into important contracts of any kind 
without the concurrence of others. That being so 
he could not have an absolute right to sell, which 
is one of the most important forms of contract at 
the same time that it is in general an exercise of 
the right of personal ownership. If by absolute 
ownership is meant unlimited and perpetual power 
of use and disposal, then no such thing as absolute 
ownership of land existed; and the person called 
owner was but .part owner, part agent, and part 
trustee for life, with right of enjoyment. The fine 
or sept occupied the position of principal and cestui 
que trust With the concurrence of the fine or sept, 
the individual could confer an almost absolute title. 
Without this concurrence he could not. Though 
the c6iles owned, in a sense, the land about their 
homesteads, and no doubt called it their own, they 
certainly had not an absolute right either during 
life or at death to dispose of it to a person outside 
the clan. Tenure depended on, and was subject to, 
the tribal status not of the immediate holder alone, 
but of other members of the fine^ who had in the 
property vested rights of a character and extent 
defined by the law. Neither the land nor the tenure 
of it belonged exclusively to the individual^ but 
partly to the fine^ contingently to the sept — a wider 



CLASSIFICATION OF SOCIETY. I15 

circle ; and though all these had waived or forfeited 
their rights, or had died, the holder did not thereby 
acquire a right of absolute disposal, for the para- 
mount rights of the clan itself intervened. And 
apart from these considerations, and its general 
repugnancy to the clan organisation, a right of 
absolute disposal is expressly negatived by distinct 
passages in the law. In the Corus Bescna we 
read, " No person should grant land except such as 
he himself has purchased, unless by the common 
consent of the tribe, and that he leaves his share 
of the common lands to revert to the common 
possession of the tribe after him." That is a 
perfectly clear statement Again we read, "It is 
one of the duties of the tribe to support every tribes- 
man, and the tribe does this when in its proper 
condition. The proper duties of one towards his 
tribe are, that when he has not bought he should not sell; 
that he does not wound; nor desire to wound or 
betray." From these two passages it is quite clear 
that the sale of inherited land was not absolutely 
free. It by no means follows that the sale of 
purchased land was wholly free from restriction. 
Little land was purchased, and clearly the sale of 
it was freer than the sale of inherited land. Even 
on the disposal of chattels, such as cattle, there 
were some restrictions. An owner about to sell 
them should inform the flaith or chief of his tuath 
of his intention; and the chief or flaith or any 
member of the tuath who required the thing about 
to be sold had a right of pre-emption or first offer. 



Il6 THE BRBHON LAWS. 

The ownership of the clan, at first real and positive 
enough, was becoming vague, indefinite, and scarcely 
conscious or operative except when the need or the 
interest of the clan or of a member of the clan was 
shown to call for its exercise. This most frequently 
existed and could most easily be shown in connec- 
tion with land, the most valuable of all property ; 
but it might also be occasionally shown in a 
sufficiently acute form if an owner of cattle drove 
them away and sold them to strangers, while the 
lands of the clan were understocked. And among 
small farmers who were often joined for purposes 
of ploughing, to allow one of such partners to sell 
his draft beasts at a particular time when his own 
work was done but not that of his partner, would 
be to allow injustice; and the laws preferred 
prevention to punishment. 

In connection with this question of disposal, it 
may not be amiss to point out in passing that in 
many countries in ancient times property in land 
was transferred only in a court of law, and that 
in England the alienation of land was not free until 
two centuries after the Norman Conquest. 

The land held by the chiles as private property, 
and on which they resided, was subject to an annual 
ciss (= tribute), rather in the nature of revenue for 
clan purposes than of rent, and to smaller payments 
resembling rates. All tributes were paid in kind, 
and wealthy people had to pay in reflections also — 
which, of course, was a species of payment in kind. 
Money was little known or used. There is no 






CLASSIFICATION OF SOCIETY. II7 

mention of it in the Senchus Mor. It is mentioned 
a couple of times in the commentaries on other 
law tracts. Articles of gold, silver, and copper are 
spoken of ; but not money in the text. An article 
called a sicail is spoken of in the commentary. 
Although it was of a fixed value, I think from its 
having been used only by ladies that it was con- 
sidered rather an ornament than a coin. Ordinary 
chiles paid in horses, cattle, sheep, goats, pigs, and 
other animals, alive or dead; wheat, barley, malt, 
flax, onions, dye-plants, firkins of butter, meal, wool, 
honey, and other products of the land, with, in 
most cases, ^'a handful of candles eight fists in 
length." These candles were partially peeled 
rushes dipped in fat. Bees and honey are so 
frequently mentioned in the laws that the editors 
remark that from the Brehon Laws alone a code 
on the subject of bees might easily be gathered. 
A curious code it would be too. An owner of bees 
was obliged to distribute every third year a portion 
of his honey among his neighbours, because the 
bees had gathered the honey off the neighbours' 
lands. There is even a special tract on **Bee 
Judgments." The importance of bees was largely 
due to the fact that sugar was unknown. Honey 
was probably the only sweetening material in use. 
It was used also in the manufacture of mead ; and 
beeswax was used in the manufacture of candles, 
chiefly those employed at royal entertainments and 
as altar lights. In such times bees with their 
honey and wax constituted ^ valuable property. 



Il8 THE BRBHON LAWS. 

The ancient laws of Wales also contain many 
rules relating to bees and honey, far more than 
the present importance of these things would 
justify. 

Craftsmen and others who could make useful or 
ornamental articles, an'd who at the same time held 
some land, paid for it by whatever they could make, 
as machinery, agricultural and household implements, 
tools of various kinds, furniture, articles of clothing, 
bedding, linen, swords, shields, musical instruments, 
ornaments of various kinds for the person and for 
the home ; in short, whatever the skill of one could 
produce and the fancy of another desire. Manu- 
factured articles being then of greater value than 
now, and land being cheaper, those articles would 
pay for more land. Some persons also held land, 
as in England and on the Continent, by services — 
services against wolves, pirates, and other enemies ; 
but this species of tenure does not appear to have 
been either extensive or continual. There was no 
such thing as tenure by ordinary military service. It 
was at once the right and the duty of every free 
clansman to render this, whether he held land or 
not; and a person who, in the absence of sickness or 
other valid excuse, failed to render military service 
when required suffered a reduction of status — a 
diminution of rights and powers. Cottiers holding 
small plots of land immediately from the flaith often 
paid for it in manual labour. 

In respect of the quantities of the things paid in 
kind^ nice calculations must have been difficult, 



CLASSIFICATION OF SOCIETY. IIQ 

but the laws distinguish three degrees. The first 
and lowest was the ciss fixed by law as payable 
by every clansman who held land. In the English 
version of the Ancient Laws of Ireland this word is 
translated "rent." This is due to the modem 
importance of rent acting on the minds of the 
translators. Rent is neither a correct translation 
of the word nor a correct description of the thing. 
The correct translation of ciss is tribute; and the 
ciss was not rent, but tribute. It constituted the 
ordinary revenue for public purposes; and it was 
levied on land as being at once the principal class 
of property and the natural source of support for 
the state. The second species of payment resembled 
rent more closely, being a stipulated payment for 
land to which a man had no title arising from clan 
status or from the law. The third was called the 
ciss ninsciSf or wearisome tribute^ and it was rent in 
reality. It was paid under agreement by a person 
who did not belong to the clan, that is, either by 
an outsider or a non-free person residing in the 
territory. 

The measures by which the actual quantities in 
each case were ascertained were the cumhal (pro- 
nounced cooal) and the sed (pronounced shed). These 
terms are of constant recurrence throughout the 
laws wherever measurable quantities are in question. 
Cumhal means, literally, a bond-maid or female slave; 
but in the laws it is never used in any other sense 
than as a measure of quantity, or rather of value, 
perhaps what was originally supposed to equal the 



130 THE BREHON LAWS. 

value of such a slave. As applied to land (tir- 
cumhal)^ it meant the usufruct for one year of 
about twenty acres, less or more, according as the 
land was good or bad. For land was not always 
measured by its actual superficial extent, but by 
the number of cows it was capable of feeding. This 
is still quite a usual mode of measuring land and of 
calculating its worth. Also if a mill or other useful 
or profitable structure stood on the land, less of that 
land would amount to a cumhal than if there were 
no such structure. In short, cumhal was a measure 
of value, not of extent. As applied to other things 
than land, cumhal meant the value of three cows. 
Translators appear to hesitate at the word sed^ 
probably on account of the number of senses in 
which it is used. It is rendered, " a jewel, a cow, 
a thing of value." It, however, does not mean any 
particular species of property, but a certain standard 
of value, irrespective of species ; and in the Senchus 
Mor five seds equal three cows. Of course the 
knowledge of these equivalents hardly helps us at 
all in determining the present money value of 
either. 

The free clansmen had, in addition to their private 
lands, the right to turn out cattle and swine to graze 
on the Fearan Fine or common land, the number of 
beasts that each person might so turn out being fixed 
in a general way by the law and specifically deter- 
mined by the jury already mentioned. This use 
was not free, however. The rent usually paid for it 
was one animal yearly for every seven fed in this way. 



CLASSIFICATION OF SOCIETY. 121 

A c^ile who required more land than he possessed 
could obtain it from the chief for one year, or, with 
the consent of the tribe, permanently, out of the 
Fearan Fine or any waste land that could be spared. 
For this the c6ile paid tribute of the second class 
mentioned above for ten years, after which the land 
was subject only to tribute of the first class. The 
land having in the meantime become more valuable, 
it is possible that the actual amount of the tribute 
remained the same. 

Of the smaller payments to which landholders 
were subject, some were certain, others contingent. 
One of the certain payments was that made by all 
for the support of the poor, the aged, orphans, and 
the like belonging to the clan, in addition to the 
Cumhal Senorba, or Old Age Inheritance, which 
stood dedicated to their use. The immediate re- 
latives of a criminal were contingently liable to pay 
compensation for his misdeeds; and the sept, and 
even the whole clan, were liable in the contingency 
of the nearer relatives failing. There was also a 
somewhat similar liability in respect of certain 
contracts, if entered into with the consent of the 
relatives or of the clan. 

All the tributes mentioned were paid to the flaith, 
not as landlord but as a public officer, not for his 
own use, except so far as the absence of money and 
other circumstances rendered his use necessary, but 
to be spent in the interests of the clan. Neither the 
land nor the tribute issuing out of it belonged to the 
flaith. He had no power whatever to evict a clans- 



122 THE BREHON LAWS. 

man, whether the tribute was paid or not. He might 
evict an outsider, or a non-free person, to whom he 
had let land by agreement, if the rent agreed upon 
was not paid, or for other sufficient cause. But the 
free clansman's tenure was not the result of any 
agreement, and was not from the flaith at all, but 
was a right accruing to him at his birth ; and if he 
was in default with the tribute the utmost the flaith 
could do against him was to distrain his cattle or 
other goods for the amount due. In the case of a 
number of debts due by the same person, and sued 
for at the same time, arrears of tribute had to be 
paid first ; but if a c^ile died owing arrears of tribute, 
the amount of those arrears could not be recovered 
from the chile's heirs. "Every dead man kills his 
liabilities. It results from the neglect of the flaith 
that there is no liability upon the heirs of the c6ile, 
unless they themselves have committed default after 
the death of their father." 

The collection and expenditure of tribute was the 
weakest point in the whole Irish system, as it was 
in that of Rome. The Roman system of govern- 
ment was probably as perfect for the time as is any 
system of modern Europe, with the exception of 
this one flaw — the taxes were farmed out to under- 
takers to collect, instead of being collected by the 
State. The Irish system provided the flaith for the 
collection of the tributes, but left them when col- 
lected in the hands of the collector. The flaith was 
at once state receiver and chief executive ofiicer of 
his district. What did he do with all this rent in 



CLASSIFICATION OF SOCIETY. 123 

kind which was being continually heaped upon him ? 
The system theoretically provided many useful things 
for him to do with it ; but the temptation to abuse 
his position gained as that system lost in controlling 
power. He was obliged to pay some tribute to the 
king or chief above him. In time of war he was 
bound to provide a fixed number of men and horses, 
together with food for them. He was bound to 
entertain the king and certain high officials with 
their respective retinues on certain periodic visits. 
He was bound to make suitable provision for the 
public officers of his own small territory. He was 
bound, with the concurrence of the local assemblies, 
to keep roads, bridges, and ferries in repair and to 
make new ones where necessary; to provide pro- 
tection against storms and floods ; to maintain the 
public mill of the district, the public fishing-net, 
and other public institutions which varied with the 
nature of the district. It was his duty to supply, 
where needful, the farmers and cottiers with live 
stock for their lands, chiefly young cattle, according 
to their various wants, the quality of the land they 
held, and other circumstances, so that they might, 
by feeding and using these animals in their respective 
ways, support themselves and pay the tribute out 
of the profits. One farmer would, from taste or 
suitability of circumstances, make a specialty of 
breeding one particular class of stock, another a 
different class; and the flaith took up the tributes 
from the different men at different seasons of the 
year, thus making the supply keep pace with the 



124 'THE BREHON LAWS. 

demand, always having enough on hands to satisfy 
all requirements, and letting out to one what he had 
received from another. In order that the supply 
should not fail and that the sept should not suffer, 
the law required every clansman who had a super- 
fluity of stock to dispose of to apprise the flaith of 
his district before selling them, and the flaith was 
empowered to enforce this law if necessary. The 
flaith was also bound to provide bulls and stallions 
for the use of the sept These were very useful 
functions, and they by no means exhausted the 
duties which by law the flaith was bound to dis- 
charge, and probably did discharge (through ser- 
vants, of course), so long as the local assemblies 
exercised their powers of guidance and control. The 
tributes being in kind, too, it really was hard to 
make a better use of them than that indicated. 
But the system was a bad one, bound to break 
down as soon as the check of a local assembly was 
removed. Perhaps the flaith exacted nearly as much 
tribute from the people in a time of peace as in a 
time of war, and perhaps after exacting tribute he 
left public works undone, or left those who had paid 
for them to do them as well; and with so much 
property of various kinds jn his hands and coming 
into them, and a feeble assembly or none to demand 
it or an account of it from him, the temptation to 
regard it all as his own imposed a strain on the 
virtue of the flaith, impelling him at once to oppress 
those beneath him and to shirk his own duty to 
those above him and to the State, The state 



CLASSIFICATION OF SOCIETY. 125 

receiver became a receiver for himself; the execu- 
tive officer did not trouble himself to execute much 
beyond what was to his own advantage. 

Some landholders of adequate means raised suffi- 
cient stock for their own use« and had no occasion to 
purchase or hire stock ; or they purchased what they 
wanted in the ordinary way, from the flaith or from 
somebody else, and had no account to render. All 
the C6iles were classified as Saer and Doer, which 
terms are translated as free and base respectively. 
We are told that the difference was like that which 
prevailed, and to some extent still prevails, in Eng- 
land between freeholders and copyholders. Beyond 
this vague comparison, those who make it do not 
attempt to explain the distinction in the case of those 
who did not hire stock ; and if the distinction existed 
among such chiles — as it appears to have done — I 
have failed to discover in what it consisted. Of this 
I am very sure, that the difference was not the same 
as that between English freeholders and copyholders, 
that the conditions of the one country rendered the 
relations of the other wholly inapplicable, and that 
the references made to those tenures do not help us 
in the least. Possibly they are as often made to 
excuse the writer from explaining as to assist readers 
to understand. In my opinion, the tenure of all who 
did not hire stock was a perfectly free tenure, and in 
their case the terms saer and daer had reference to 
their comparative wealth and status, and not to the 
nature of their tenure. 

The transactions of the flaith in cattle, however, 



126 THE BRBHON LAWS. 

appear to have consisted in practice mainly in letting 
out cattle on what may be called a hire-purchase 
system, which itself was of two kinds ; and it is in 
the difference between these two kinds that, so far 
as regards the c6iles who hired stock, the real differ- 
ence between saer and daer consisted. The trans- 
lators describe this difference, in half-English, as 
saer-stock tenure and daer-stock tenure. One of our 
modern writers says that the difference between the 
saer-stock and the daer-stock tenant was, that the 
latter paid Biathad (pronounced Beeha)^ a word 
signifying Food-Tribute^ or a payment made in any 
eatable material. This is a mistake. Nominally, 
indeed, certain persons were bound to pay certain 
amounts of food-tribute, but in practice either or 
both paid it whenever it happened to be the most 
convenient form of payment. It was in the quantity 
and the other terms that the difference consisted. 
And with regard to both these terms, tenure being a 
word used in English law only with reference to land 
or something issuing out of land, it can hardly be a 
correct translation at all, since what the daith let 
out to the c6iles was not land but cattle. In what 
is called saer-stock tenure the flaith gave the stock 
without requiring any security, and without any 
bargain whatever, but subject to the general law 
which was known to both parties. My own impres- 
sion is that the flaith was bound to do this, and that 
the person to whom he so gave stock was a clansman 
entitled to get stock in this way, and was not a 
tenant at all. However, let that pass. The flaith 



CLASSIFICATION OF SOCIETY. 127 

gave the stock, and for it the law entitled him to an 
annual return for seven years of one-third the value 
of the stock given. This payment being duly made, at 
the end of seven years the stock became the absolute 
property of the cfeile, and he had no more to pay for 
them. This was a substantial return. Though not 
so heavy as modern rent, especially in view of its 
short duration, it was heavier than the gross amount 
of tributes paid by the c6iles who did not hire stock. 
The ceile might, if he liked, not begin to pay the 
instalments until the end of the third year, but he 
was bound to pay up then for those three years. 

Daer-stock tenure, among those who hired cattle, 
was somewhat similar ; but the tenant had to give 
security for the stock, to render a larger return than the 
saer-stock tenant did, and if he was a free clansman 
entitled to take saer-stock the fact of his taking daer- 
stock seriously affected his status and that of his 
fine^ rendered him incompetent to give evidence in a 
court of justice in opposition to the evidence of a 
flaith, and diminished or extinguished his right, and 
the right of his finCy to recover eric or other fine in 
the event of injury done to him or them. These 
were such grave consequences that a free clansman 
could not take daer-stock without the consent of his 
finCy and it was only the pressure of poverty would 
induce him to take daer-stock at all. War generally 
reduced large numbers to this necessity. It is 
probable that the law originally contemplated the 
taking of daer-stock only by men who were not true 
clansmen. 



128 THE BREHON LAWS. 

The rights and duties of both parties in these 
transactions are so fully and minutely laid down in 
the laws that there was little occasion for specific 
contracts, and probably business was done as smoothly 
without them as with them. There was more need 
of specific contract in base tenure than in the other, 
since, although it was provided for by the law, it 
originated not in a birthright like the other tenure, 
but in an agreement express or implied. Neither of 
the tenures was liable to capricious determination 
by either party. But for just and sufficient cause, 
and subject to fair conditions, either party might 
bring the arrangement to an end. It is said that 
the daer-c6ile as well as the saer-c6ile was able, for 
just cause, to have the contract set aside ; but it is 
not clear how he could do this except with the 
voluntary consent of the flaith, first, because the 
flaith held security, and secondly, because the daer- 
stock tenant was incompetent to give evidence 
against a flaith. 

If a c6ile who had taken stock absconded without 
paying the value, and left no property behind him 
but the land, unless the fine paid for the cattle the 
flaith was entitled to take and hold so much of the 
land as would compensate him. The remainder 
went to the^^ of the absconding debtor, subject to 
any debts due by him. 

In the laws a daer-man or daer-person is mentioned 
as distinct from a daer-stock tenant, and ^' the full 
eric fine of a daer-man " is frequently spoken of* 
What exactly this person was I cannot ascertain* 




Sub'Section 4. — Devolution of Property. 




NITY of ownership in the clan, so 
long as it existed and so far as it 
extended, prevented the devolution 
of property to individuals in the 
same sense as in English law. Even 
to a late period a considerable 
portion of land was not inheritable by individuals, 
but remained unchangeably the property of the 
clan as an immortal corporation. To this land, 
therefore, no rules of devolution applied. Orba, 
or lands of inheritance, descended in three different 
ways : — 

I. According to the rules of gavelkind. I place this 
first, not because it was the most important in 
historical times, but because it was the oldest, was 
once general, and certainly was the most unlike 
anything we are now acquainted with. Land held 
by a man outside his home farm, and which occupied 
an intermediate position between his private land 
and the common land of the clan, descended accor- 
ding to the Irish system of gavelkind, that is, on 
the holder's death not only the particular land 



10 



129 



I30 THE BREHON LAWS. 

which had been thus held by hiniy but all the land of 
the same class belonging to his sept, was divided 
anew amongst the adult males of the sept. It was 
an unsettled system. Still it must be admitted that 
it gave some start in life, however crude, to young 
men who might otherwise have got none. On such 
a division of land, the amount of it that each person 
was entitled to receive was fixed in general theory 
by the law, subject to adjustment in each particular 
case by a court of twelve men who took differences 
of quality and other relevant facts into consideration. 
Their decisions do not appear to have been ques- 
tioned. If they ever were questioned, no doubt an 
appeal lay to the brehons. Under this peculiar 
custom of descent women appear to have been ex- 
cluded. The amount of land subject to the custom con- 
stantly diminished, the custom receding, as it were, 
from good land and extending to land little cultivated. 
I think the land subject to this custom must have 
been unfenced, but it is not so stated. It was that 
portion of the land of the sept over which an indi- 
vidual right of private property had not yet attained 
maturity, the interest of each holder not being 
ownership nor quite a life interest. A large propor- 
tion of the good land of Ireland must have been 
rescued from this custom a century or two before 
the birth of Christ, if it be true as stated that large 
quantities of corn were grown and exported in those 
centuries to Britain, Gaul, and Spain, a thing hardly 
possible if the land had remained unfenced and sub<* 
ject to this unsettled species of gavelkind. At the 



CLASSIFICATION OF SOCIETY. I3I 

time of Caesar's arrival in Britain the land there was 
wholly unfencedy except the mounds and fallen 
timber that encircled the fortresses and clustering 
hamlets. There was no division into fieldsi the land 
being distinguished only as cleared and uncleared in 
respect of forest, and the people subsisting mainly on 
meat and milk. But Ireland was more advanced at 
that time, and (or perhaps because) it was more 
accessible to and more frequented by merchants 
from the then enlightened nations of the world, the 
State of Northern Europe being such that merchants 
could not cross overland in safety. Some of the 
good land of Ireland was fenced at a very early date^ 
and the law affecting fences and mearings is old and 
and yet elaborate. The nature of the fence affected 
the liability Jor trespass upon land; hence in dealing 
with that subject the law describes the fences. There 
were ditch-and-mound fences, wall fences, stake 
fences woven with rods and having a blackthorn 
crest on the top ; and some others. 

2. As private property. In this case, on the death 
of the father of a family each member of his Geilfine 
^—usually meaning each son not already provided for 
— was entitled to an equal share of the land and of 
the cattle fed upon it ; but one of the sons, in 
addition to his equal share, inherited all the houses 
and offices constituting the homestead, the valuable 
fixtures which usually stood upon the same land, and 
the household, farming and manufacturing imple;* 
ments. Whether this favoured son was the eldest or 
the youngest is one of the disputed points in connec-* 



132 THE BREHON LAWS. 

lion with that obscure subject the organisation of 
the fine. The preponderance of opinion at present 
seems to be in favour of the eldest son, and this is 
probably correct as applied to the Middle Ages ; but 
I incline to the belief that earlier it was the youngest 
son who was so favoured. However this may be, as 
a counterpoise and consideration for the special 
inheritance, the law held him responsible, as 
succeeding flaith-fine and stem of the family, for the 
guardianship of his sisters until their, marriage and 
of any other dependent members of his fine^ obliged 
him to act as plaintiff and defendant as became 
necessary in all suits at law concerning them or their 
property ; and if he was of proper grade bound him 
to entertain the king, bishop, bards, brehons, and 
others with their respective retinues. In the fore- 
going circumstances all the land went to the sons, 
and daughters had either to depend on the husbands 
they got or to be provided for out of the movable 
property. On the occasion of almost every marriage 
there was a collection, called a Tinol, made among 
the relatives and given to the bride. But this can 
hardly have been a very substantial amount, and it 
probably corresponded to modern wedding presents. 
If daughters were more numerous than sons, and 
could not be provided for out of the movable 
property without gross inequality, one or more of 
their husbands might be admitted to an equal share 
of the land, and then questions of status would arise 
as to which of them this should be. If there were 
no sons, the land, anciently, went to the nearest 



t^^^<f5SW5B5K«w^^ffi 



CLASSIFICATION OF SOCIETY. I33 

male members of the fine in the order already 
described, subject to a provision being made out of 
it for the daughters. The exclusion of daughters 
from inheritance seems to us very unfair ; but it was 
no more so then in Ireland than it was many 
centuries later under the Normans in England. The 
chief reason for it in the latter case was, that the 
land was held by military service, which women 
were incapable of rendering. The Irish got rid of 
the anomaly long before the introduction of Christi- 
anity, through the exertions, it is said, of Brig 
Ambui. She is described by some as a lady judge. 
There were no lady judges. She was the wife of a 
judge, made use of her position to acquire an excep- 
tional knowledge of law, gave advice to women 
regarding the taking possession of land which they 
claimed, and her advice was so skilful that she suc- 
ceeded in winning, not alone their particular cases 
for her clients, but legal equality for her sex in 
general. She was probably assisted by two facts, 
namely, that military tenures in the Norman sense 
did not exist in Ireland, and that Irish women were 
in those times free and liable to bear arms. How- 
ever it came about, in the Middle Ages in Ireland, if 
there were no sons the property was divided equally 
among 'the daughters. With regard to the further 
descent of land thus given to daughters, the text 
says, " As to a mother's land, her sons shall divide it 
from the days of her public testament. But the half 
of it shall revert to the tribe of the original owner of 
the land ; the other half according to true judgments 
the seed of her flesh divide." 



134 '^^^ BRBHON LAWS. 

3. According to the rules of tanistry. In order to 
secure to kings^ chiefs, flaiths, and other public 
officers who acted on behalf of the community, their 
ancient affluence permanent and undiminished, with 
all its attendant advantages, the law held the lands 
assigned them for their public services to be indi- 
visible. The land held by each descended to his 
successor, as the property of a corporation does in 
English law. The successor was usually a near 
relative, but not necessarily so. Thus while the 
lands held by ordinary people underwent repeated 
subdivision as they descended, and the rights and 
privileges which landed property conferred were 
similarly subdivided, constantly tending downwards 
to small patches, few rights, and little power, a 
position of permanent and disproportionate wealth 
with its attendant power was secured to the people 
of rank ; and what was apparently a restriction, and 
was originally intended as such, became in operation 
a class privilege. And although the flaiths had 
practically appropriated the official lands to their 
own families, so far from desiring to free those lands 
from this rule of descent, they maintained the rule 
and even extended it to all the lands they could in 
any way acquire. 



StA-SecUon 5. — The Elizabethan Atrocities in their 
Relation to Land. 



'URNING to the subject of tenurej 
, describing the chiles I have endea- 
mred to give a general outline of 
the element in which they lived, 
namely, the law affecting pro- 
perty in land. That law was as 
ke the system called Feudalism 
iiny that ever existed ; so unlike, 
hat it has been called, and truly 
called, the very antithesis of feudalism. 
This being so, it is strange and confusing to 
find Irish scholars of the present day writing and 
speaking of Irish feudalism, and representing the 
ghastly struggle of Queen Elizabeth's reign as one 
between Irish feudalism and English anti-feudalism ; 
the real fact being that there has never been such a 
thing as Irish feudalism. The feudal system of 
land tenure prevailed for several centuries over 
England, Scotland, and a large portion of the conti- 
nent of Europe, and it is still distinctly traceable in 



136 THE BREHON LAWS. 

the laws of those countries ; so much so that a 
thorough knowledge of real property law at the 
present day cannot be acquired until one has first 
made himself acquainted with the leading features of 
the feudal system. Those features do not exist in 
the system I have just outlined. Feudalism never 
prevailed in Ireland, never existed there, and the 
system that did prevail was as unlike feudalism as 
could well be devised. The relation between the 
flaith and the c6ile was not one of tenure at all in 
the proper meaning of that word. The nature of 
that relation is wholly misconceived by any one wlio 
looks for tenure in it. A tenure did exist, as we 
shall see ; but it existed between the flaith and the 
non-free people, not between the flaith and the 
clansmen. The land belonged neither to the king 
nor to a lord, but to the clan, including high and 
low. What the flaith held, what the c6ile held, and 
what neither held, belonged alike to the clan. And 
even when a clansman sought and obtained more 
land than his status entitled him to, and a relation 
resembling tenure arose respecting this land, that 
relation was not with the flaith, except as the ofiicial 
through whose instrumentality it was contracted, 
but with the clan of which the c6ile and the flaith 
were alike members. The feudal principle of 
primogeniture was not recognised by the law in 
regard to either rank or property. Instead of it, and 
in contrast with it, the law provided for election to 
every office, with the addition that the most worthy 
should be elected, and provided that property should 



««■ ■ 1 1^ " ■ m 4^ 



CLASSIFICATION OF SOCIETY. 137 

descend to those who had the strongest natural 
clainiy in shares which were in effect proportioned to 
the strength of that claim. It is surely a strange 
mistake to call such a system feudalism. As 
Professor O'Curry says, *' Feudal land laws never 
prevailed in any form in ancient Erinn." 

One element resembling feudalism ran through 
the whole Irish system from the king to the 
humblest person who paid tribute. This was the 
custom according to which when any one, high or 
low, paid tribute he was always given something in 
return by the person to whom he had just made the 
payment. Precisely the same rule was observed on 
the payment of tribute by the chief of a tuath to a 
provincial king, and on the payment of tribute by the 
provincial king to the Ard-Rlg. The thing given in 
return was usually something of little value, but the 
acceptance of it is interpreted by writers of the 
present day, arguing from the heriot of English 
copyhold tenure, to have been the acceptance of a 
position of vassalage. Personally, I believe this to 
be a purely gratuitous assumption based upon a false 
analogy. This single ceremony, even if it were 
shown to have had any relation to land, cannot 
neutralise every other fact connected with the hold- 
ing of land. It is at least as likely to have been a 
recognition of allegiance as a yoke of tenure. What 
its real meaning was, since it cannot yet be deter- 
mined with certainty, had better be left in honest 
doubt until through further research certainty 
is reached. In the light of our present defective 



J38 THE BREHON LAWS. 

knowledge, the custom appears inconsistent with 
the clan organisation, and yet it seems to have 
prevailed when that organisation was in vigour ; 
and it certainly was entirely native and not derived 
from the feudalism of England or the Continent. 

It is true that the Irish system was undergoing a 
change amounting to decay, and was drifting in the 
direction of feudalism at the time that feudalism 
was dying out in- England. Various causes, political, 
social, and economic, contributed to this. First of 
all, the radical defect in the system itself in regard 
to the collection and disbursement of the tributes. 
Then of historical causes, chiefly contact and friction 
with non-Celtic elements, beginning with the wars 
with the Danes, which deranged the mechanism and 
disturbed the smooth operation of the Gaelic system. 
Before the country had recovered from the disorder 
thus occasioned, the Anglo-Normans arrived, pre- 
vented recovery, and contributed to the progress of 
decay in the following, among other ways. While 
as a rule adopting the Brehon Laws, so far as their 
personal interests were served by doing so — adopting 
the advantages without the correlative restraints and 
responsibilities — those settlers introduced to the 
districts grabbed by them a few of the rules of 
feudalism and some of the feudal spirit. Em- 
boldened by the force of this example, and by 
avarice, some of the flaiths who were the Gaelic 
neighbours of those settlers, and who had long been 
treating as their own property that which was 
originally ofiicial, at times of disorder and conse- 



CLASSIFICATION OF SOCIETY. 139 

quent relaxation of the Gaelic discipline, extended 
their pretensions^ began to assert their personal 
individuality over that of the community, to regard 
themselves as lords in the feudal sense, to treat the 
tributes paid to them» and even the lands out of 
which those tributes issued, as in some sense their 
own, and to treat as tenants men who had hitherto 
been their fellow clansmen. The presence of two rival 
races in the land, and the consequent frequency of 
war, afforded occasions sufficiently numerous for the 
progress of this constitutional gangrene. Favoured 
by these circumstances, and prompted by self- 
interest, Gaelic flaith and Norman settler alike 
developed a strong personality, acquired undue 
prominence as military leaders, prevented the 
regular meetings of the local assemblies, marred and 
paralysed them when they did meet, rendered the 
formation of effective public opinion impossible in 
any way, and reduced the former clansmen or their 
descendants to the position of mere retainers. 
True progress there could be none, and as nations 
seldom stand still there was a retrograde movement. 
The old temporary tributes here and there degenera- 
ted into permanent rents; the old tenure of cattle 
into a tenure of the land upon which the cattle were 
fed ; clan rights became more and more vague, the 
personal rights of people of rank more and more 
.accentuated, the personal rights of humble people 
less so. The situation became altogether favourable 
for the introduction of feudalism, but it was never 
introduced ; for the evolution of a native feudalism. 



} 



140 THE BRBHON LAWS. 

but it was never evolved. For, after all, this retro- 
gression was comparatively late and trifling, and as 
a fact it never found its way into the laws at all, but 
was constantly localised and counteracted by the 
laws as a disease. It was quite alien to the laws ; 
and, so far as it did extend, represented not Irish 
laws but the violation of them. Those laws con- 
tinued to be the laws of the whole country except 
the Pale until the beginning of the seventeenth 
century ; and long after their formal abolition under 
James the First, the people clung to them — as well 
they might — as tenaciously as they could ; and the 
peasantry down to the present day have, in the face 
of stern laws, clung to the old Gaelic idea that the 
land belongs to the people, an idea wholly irrecon- 
cilable with feudalism. 

The change in the land laws was one of the most 
important legal changes made by the English in 
Ireland. Without touching upon the question 
whether it was or was not necessary, it certainly 
could have been effected either without injustice 
to anybody or with very cruel injustice to the mass 
of the people. The latter was the method pursued. 
The Anglo-Norman settlers from the very beginning 
recognised and respected the rights conferred by 
tribal status. Indeed, it was impossible to do other- 
wise in a country where all rights were so conferred. 
To do otherwise would have been universal robbery, 
and this they were neither able nor inclined to carry 
out. But English rulers, from the Tudor period 
downwards, refused to recognise any such rights 



CLASSIFICATION OF SOCIETY. I4I 

in the people, and, when it suited their purpose, 
conferred upon chiefs and flaiths rights which the 
clan system never gave them. Though a man was 
in the actual possession of land descended to him 
in strict accordance with immemorial custom, if he 
was unable to show a record, or a contract on parch- 
ment duly sealed and delivered, he was treated as a 
mere tenant at will or a trespasser, and his land was 
given to an Englishman who had neither tribal nor 
any other right whatsoever. The Irish in general 
had, of course, no such muniments of title to show. 
They held their lands as their ancestors had held 
them, by right of birth in the clan. This meant 
to the English mind no right at all. Its assertion 
was rather an outrage. The general absence of 
contract was made a pretext for general confisca- 
tion. This, so far as relates to land law, was the 
real nature of the struggle that was in progress 
during the Tudor period, was atrociously pursued 
under Elizabeth, formally legalised under James the 
First, confirmed and rendered irrevocable by the 
Cromwellian and Williamite wars. It was not a 
struggle with feudalism, but a general confiscation 
of the property of Irishmen (carried out without any 
attempt to avoid needless injustice), and the natural 
resistance which that confiscation provoked. 



SECTION VI. 

FREEMEK OWNING NO PROPERTY. 

N further pursuance of our plan the next 
class to be considered is that composed 
of persons who were free but had little 
or no property, and consequently little 
or no power. Strictly speaking the col- 
lateral branches of most families, and 
persons thrust out of their fines by the 
operation of the law, and having no 
property, would fall within this descrip- 
tion ; but the persons I wish more par- 
ticularly to gather within this convenient 
group, in order to separate them from those above 
them and from those below, were simply men who 
had become poor as the result of ordinary adverse 
circumstances, or of war, or of fines imposed for 
offences, or of want of industry. Their numbers 
fluctuated from various causes. They had rights 
by birth as members of their respective clans ; but 



CLASSIFICATION OF SOCIETY, I43 

their want of property rendered and kept many of 
those rights m abeyance, unavailable, ineffectual. 
This was the only primary difference between them 
and their fellow clansmen who had property ; but 
in effect it was productive of many important 
differences ; so much so that in reality there 
was more in common between those people and 
the non-free than there was between them and 
propertied freemen, and many of them, abandoning 
all hope of recovering lost ground, deliberately threw 
up their clan status and their claims which poverty 
rendered practically worthless, and joined one or 
other of the non-free classes. Until they had done 
this, however, they were entitled to take part in 
the military muster of the clan, and had a number 
of other rights which any acquisition of property 
might enable them to realise, but which without 
property were empty. For example, they were 
entitled to feed stock on the Fearan Fine ; but 
so long as they had no stock the right was quite 
useless. 



SECTION VII. 

THE NON-FRBB. 
Sub-Section i. — Preliminary. 

J ALLY, with regard to the last 

great division, the non-free. One 

is sorry to find that there were in 

Ireland in ancient times, as there 

have been in other countries in 

ancient and modern, people who 

Dot free, some of whom were not 

.vg..»«J as members of the clan (that is, 

not regarded as citizens), and had no birthright 

in any portion of the property of the clan. This 

was so in Christian as well as in pagan times. 

There were fluctuations both in the numbers who 

were not free and in the severity of their condition ; 

and there is much reason for thinking that that 

condition hardly ever reached the degree of extreme 

abjectness. 



■^^i^ 



CLASSIFICATION OF SOCIETY. I45 

The origin of servitude in Ireland is lost in the 
mist of pre-historic ages. We are dependent on 
conjecture, the most probable being that the 
Milesians reduced to a condition of sufferance and 
servitude some portion of the Firholg, Cruithni, 
and other races that had preceded them. But the 
distinction between bond and free did not long 
correspond with racial distinction, because on the 
one hand many persons of the earlier races subse- 
quently rose to rank and power and became scarcely 
distinguishable from the rest of the community ; 
while on the other hand many persons of undoubted 
Milesian race sank, either in punishment of their 
personal crimes or as a result of war or other 
misfortune, to the very lowest rank of the non-free.. 
Again, a distinction must be observed between 
individuals in bondage all over the country and 
Firbolg communities which occupied separate dis^ 
tricts in some parts of the country until the Middle 
Ages. These latter cannot be classed as non-free. 
They were long treated as an inferior race, defective 
in status and in political rights and power; their 
language and their manners in so far as they differed 
from those of the dominant race were considered, as 
usual in such cases, marks of inferiority; and they 
probably paid higher tributes than other people did* 
But they often proved themselves sturdy people, and 
in course of time the distinctions mentioned came 
to signify no more than the local characteristics at 
present observable in different parishes. 

Without admitting that servitude in any form or 

II 



146 THE BRBHON LAWS. 

degree can be justified, or suggesting that any 
number of wrongs can make a right, one is free 
to observe that it is very hard to entirely eradicate 
from any social system, and especially from one so 
interwoven and complex as that of ancient Ireland, 
a social condition which has taken deep root in it 
and become part of it. Its continuance or discon- 
tinuance does not always rest with the free choice 
of individuals: that choice may be overruled by 
national requirements or what are deemed to be 
such. There being no prisons or convict settlements 
in Ireland, except where the natural prison afforded 
by a small island was available, reduction to a 
species of slavery, permanent or temporary, was 
considered a reasonable punishment of criminals 
guilty of capital offences but whose lives had been 
spared, and of other criminals^ho could not or 
would not satisfy the fines imposed upon them. 
Slavery in such cases differed very little from trans- 
portation or penal servitude. The taking of persons 
as hostages, too, for various purposes in civil matters 
was quite an ordinary proceeding in Ireland as in 
other European countries in ancient times. When 
any of these persons were forfeited the law entitled 
the holder to keep them in servitude, permanently 
or until they were redeemed or his claim satisfied 
by their labour or otherwise according to its extent. 
Cowards who deserted their clan in the day of trial 
on the field of battle, or got wounded in the back 
(while running away), lost their status however high 
or low it might have been, and virtually lost with 



Mift 



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'H 



CLASSIFICATION OF SOCIETY, • 147 

it their freedom. And, unfortunately, war oftentimes 
in its consequences reduced the brave as well to 
slavery. It always at once increased the number of 
slaves and furnished a pretext for holding them. The 
wars with the Danes had this two-fold effect. Stress 
and trial came, however, and were neither prevented 
nor surmounted by the holding of slaves in increas- 
ing numbers. It is said that they were more 
numerous in the twelfth century than ever before, 
notwithstanding the condemnation of the Church. 
In England also in the same century slaves were 
very numerous, notwithstanding a similar con- 
demnation. Slavery continued to exist in England 
to some extent down to the end of the sixteenth 
century, when it died a natural death ; in Scotland 
down to the end of the eighteenth century, when 
it was abolished, in 1799, by the Act 39 George the 
Third, chapter 56 ; and in America, the land of the 
free, slavery existed until our own time. 

In Ireland there were several grades in the non- 
free state, as in all classes of the free state ; but there 
are three principal non-free classes distinguished in 
the laws, namely, the Bothachs, the Sen-Cleithes, 
and the Fuidhirs. 




Sub-Section 2. — Bothacks and Sen-Cleithes. 

HE word Bolhack being 
connected with bothan, 
, it is inferred that the 
:alled by this name were 
, Sen-Cleithe means Old 

_ , , _ind the people so called 

were the poor adherents and dependants of the 
flaiths, such as servants, herds, horse-boys, cart- 
boys, dog and bawk-boys, &c. Various writers 
describe both these classes as prisoners of war or 
their descendants. For my own part I believe that 
these two classes consisted wholly of persons bom 
in the territory. Their very names indicate as 
much ; so also does the class of business in which 
they were employed ; and they were considered as 
in some sense members of the clan in whose territory 
they resided, which could hardly have been so had 
they been prisoners of war. But their connection 
with the clan did not go to the extent of giving them 
any birthright in the property of the clan ; and I do 
not think they were entitled to arms or to take any 
part in the military muster. They had the right to 



CLASSIFICATION OF SOCIETY. I49 

live in the territory as best they could by working 
for any flaith or any other person who paid them 
best. They were not restricted as to whom they 
should serve within the territory ; but they were not 
free to leave the territory except with permission, and 
in practice they usually served the flaith. They had 
no political or clan rights, could neither sue nor 
appear as witnesses, and were not free in the matter 
of entering into contracts. They could appear in a 
court of justice only in the name of the flaith or other 
person to whom they belonged, or whom they served, 
or by obtaining from an aire of 'the tuath to which 
they belonged permission to sue in his name. In 
this respect it was these people, not the chiles, who 
resembled the clientes of ancient Rome. They were 
capable of acquiring land by contract, and when they 
had done so they corresponded to the English villeins 
of the Middle Ages. With industry and economy 
they might become wealthy, and with the acquisition 
of wealth a certain progress was allowed upwards 
towards liberty and an easier lot. The distinction 
of saer and daer was recognised in their condition ; 
but it is not clear in what that distinction consisted, 
unless the former represented legal status, which 
wealth was the ordinary means of procuring. When- 
ever any of them did by contract become land-holders 
and wealthy they also acquired some social and 
political rights, and could not be removed from their 
lands without just cause and compensation for un- 
exhausted improvements. The main difference 
between such men and the free clansmen was. 



150 THE BREHON LAWS. 

that while the clansmen's possession of land 
acquired by contract would in the course of ten 
years ripen into ownership, and cattle they had 
hired from the flaith and paid for would after 
seven years become their own, the non-free men 
had no such general law continually operating in 
their favour to this extent, but were kept to the 
terms of their contract because that was throughout 
their only title. A freeman sometimes paid a pretty 
heavy tribute for such land in the beginning ; but in 
doing so he was gradually throwing off a burden from 
which he knew he would soon be entirely free. A 
non-free man paid a still heavier tribute, which was 
a rent in reality ; and yet his burden continued 
undiminished, ever wearisome. And in every case 
of conflict the claim of the non-free man should 
give way to that of the clan or of a fully enfranchised 
member of the clan. The benefit of the principle of 
partnership was extended to these two classes also, 
enabling a number of them to put their small means 
together, take a piece of mountain side or other poor 
land and stock it on the system now called rundale, 
and by means of this property to acquire rights and 
the protection of the law. If five families had each 
become so wealthy as to own one hundred head of 
cattle, and had then formed a partnership or guild 
resembling the fine of the freemen, and appointed a 
chief or flaith-fine, they were entitled at once and 
thenceforth to be recognised as a portion of the clan ; 
and then, bat not till then, all the rules of kinship 
applied to them as to the free people. Until they 



J 



CLASSIFICATION OF SOCIETY. 15! 

had emancipated themselves by individual or joint 
wealth, or in some other way, they appear to have 
lived very much on the sufferance of the clan. The 
majority of them remained poor and had little 
occasion or inclination for testing the scope or 
existence of their rights. It is probable that the 
condition of even these was not on the whole 
worse than that of modern agricultural labourers. 
Their position was one of rightlessness rather than 
slavery ; they were tolerated rather than bounds 



Sub-Section 3. — The Fuidhirs. 



UIDHIR was a name applied to all 
who did not belong to a clan, 
whether born in the territory or 
not. This was the lowest of the 
three classes of the non-free people. This 
class also was sub-divided into saer and 
doer, the daer fuidhirs being the class 
most closely resembling slaves. Even this lowest 
condition was not utterly hopeless ; progress and 
promotion were possible, and indeed were in con- 
stant operation. But on the other hand the ranks 
of the fuidhirs continued to be recruited from -various 
sources. It was here prisoners of war were to be 
found. The pagan Irish were wont to go on warlike 
expeditions to Britain and Gaul, and on their return 
to bring home, along with other booty, some of the 




1^2 THE BREHON LAWS. 

natives whom they reduced to slavery in Ireland* It 
was in this way Saint Patrick was brought to Ireland, 
and it was as a daer fuidhir he lived in Ireland in his 
youth. Centuries after Saint Patrick's time the Irish 
used to send to English ports and purchase children 
as merchandise from their English parents, who sold 
them freely. These children were brought up as 
fuidhirs in Ireland. And, as already mentioned, the 
ranks of the fuidhirs afforded a general refuge for con- 
victs, fugitives from justice from other clans, tramps, 
outcasts, and unfortunate persons of all sorts. A 
freeman could remain in his own tuath and become 
a daer fuidhir if all his property when given up was 
insufficient to pay his debts — a species of bankruptcy 
plus capitis diminutio. No fuidhir, saer or daer, was 
entitled to bear arms, or to recover eric for the murder 
of a member of his family, or to inherit property if 
by any chance he found himself in a position in which 
he would otherwise inherit. The law recognised the 
fuidhirs in some respects, however, in certain matters 
not fit to be stated here. The lowest of them were 
regarded as intelligent persons, as human beings, not 
mere chattels. 

Fuidhirs and the non-free of all classes resided for 
the most part on the flaith's land ; for, apart from 
the satisfaction of specific claims, the flaiths alone, 
as a class, had the general right of keeping non-free 
persons on their lands. This exclusive right originated 
in the legal theory that they were public officers, 
bound among other things to perform certain public 
works requiring unskilled labour of a coarse kind, 



ibk •*" '- -^-~-»— - _. 



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CLASSIFICATION OP SOCIETY. 153 

and they were allowed to keep non-free people for 
the performance of these works for the benefit of the 
community, as with convict labour of the present 
day. In practice they mostly employed the fuidhirs 
in works for their personal benefit. They were free 
to give patches of land to the saer fuidhirs either on 
their ofiicial lands or on their private property. In 
practice they gave them patches on the common or 
waste land also, exacted rent for it as though it were 
private, and in this way appropriated that land. The 
land so given was usually the poorest, most inacces- 
sible, and most difficult to utilise. The saer fuidhirs 
might, however, if they had the means, bargain with 
the flaith for good land and hold it for the term of 
one year, and during thdt term they could not be dis- 
turbed. For this land they paid him high rent, 
because he could charge them as much as he 
pleased, a thing he could not do with the clans- 
men. The daer fuidhirs, so long as they remained 
such, could hold no land whatever for any term, and 
no contract made with them had any binding effect. 
They worked for the flaith, and by means of their 
cheap labour he was able to cultivate his land, and 
some of the common land of the clan if it suited him. 
Both classes of fuidhirs helped the flaith to encroach 
on the property of the clan. Hence he had an interest 
in increasing the numbers of fuidhirs, and with their 
increase his dependence on the clan in some respects 
diminished. The moral and material interests of the 
free clansmen leant the other way. They disliked the 
presence and still more the increase of fuidhirs. The 



154 THE BREHON LAWS. 

policy of the law, too, was distinctly and uniformly 
adverse to slavery and to the introduction and keeping 
of fuidhirsy and it imposed some checks on the 
practice. For the performance of servile labour 
for the benefit of the community it allowed rather 
than entitled chiefs and flaiths having control of 
districts to keep a limited number of fuidhirs in 
proportion to the size of their respective districts. 
This particular restriction as to number does not 
appear to have been operative. The law, however, 
held the chief or flaith responsible to his clan and 
to his king for all legal liabilities arising from the 
acts of fuidhirs. It made his rank and privileges 
depend on the number of chiles in his district. It 
bound him to be ready when required to bring a 
certain number of armed men into the field of 
battle, and as the fuidhirs were neither bound nor 
entitled to take part in military operations at all, 
this demand could be satisfied only by free clansmen. 
For all these reasons, however the flaith might 
desire to increase the number of fuidhirs for his 
personal advantage, he could do so directly at the 
expense of the c6iles only to a limited extent. In 
other ways also the law discouraged the introduction 
of fuidhirs ; and when they had been introduced it 
favoured and facilitated the well-being and emanci- 
pation of such of them as were not criminal. There- 
fore all families did not remain permanently in this 
kind of servitude but gradually rose from a lower 
to a higher degree according to a certain scale of 
progress, unless they committed some crime which 



CLASSIFICATION OF SOCIETV. 155 

would arrest that progress and cast them down 
again. This progress was arranged according to 
the time a fuidhir family had resided in the territory, 
and its thrift as evidenced by the amount of wealth 
acquired, subject to the effect of conduct. Though 
a flaith might not keep any bargain with a daer 
fuidhir, if as a fact he let land to him and did keep 
the bargain, a status began to be acquired. In the 
third generation the fuidhir family attained some 
partial connection with the clan and a foothold in 
the soil, so that they could not be driven away except 
for 3 crime. As time went on, if the progress was 
maintained, the rights of their descendants increased 
and expanded, they gradually intermairied with the 
clan and became indistinguishable from it, and their 
origin was forgotten. 

In later times as the flaiths assumed the character 
of lords, all poor people, whether originally free or 
not, gravitated towards the condition of the ancient 
fuidhirs; and under Queen Elizabeth the majority 
of the Irish people were indiscriminately reduced to 
almost the same level. So they and their descendants 
remained for almost three centuries. 



CHAPTER VI. 

THE LA W OF DISTRAINING. 

SECTION I. 

INTRODU CTORY. 



r US now coosider briefly the law 
distress, that is the seizing of 
)perty for the satisfaction of debt, 
its time it was substantially the 
most extensive and important 
part of the whole Brehon Code 
and in its operation affected the 
whole of it, being incidental to 
all litigation. That strange fact 
makes it interesting to us. It 
has besides some intrinsic points of interest But 
the whole subject wtll not detain us at length pro- 
portioned to its ancient importance. 



^^^^^W^W^j^-J^^B^W-^^^^B^^^^-^^^^^^^^ 



THE LAW OF DISTRAINING. 157 

There had always been local customs regulating 
distress, but, as might be expected, neither were they 
all alike nor any one of them consistently observed 
even in the district to which it nominally belonged. 
The consequence was irregularity leading to injus- 
tice and sometimes to violence. The matter being 
so very important, a national convention "was sum- 
moned and held, about a hundred years before the 
birth of Christ, on the hill of Uisneach, near the 
present town of Moate, in Westmeath, was attended 
by representative men from every province, and 
there a uniform system of distress drawn up and 
proposed by Sean (Shan), son of Aighe, a Connaught- 
man, was adopted for the whole country. This 
continued in force for nearly seventeen hundred 
years, and is the system now about to be briefly out- 
lined. 




SECTION 11. 

DEFINITION AND SCOPE. 

THGABHAIL is the word trans- 
lated distress. It means the re- 
sumption or recovery of either 
property or right of which one , 
has been deprived. What was 
meant for a definition in the 
Gaelic is translated thus — " It 
is called Athgabhail, because 
through it advantage is obtained after disadvantage, 
property after the absence of property, possession 
after non-possession, truth after untruth, legality 
after illegality, justice after injustice, lawful posses- 
sion after unlawful possession, right after wrong, 
order after disorder. Athgabhail is a general name 
for every security by which one recovers his right. 
Athgabhail is that which renders good to the good, 
which renders evil to the evil, which takes the guilty 
for his guilt." 



THE LAW OF DISTRAINING. 159 

Whatever the law commanded or prohibited, the 
command or prohibition, if not obeyed, was enforced 
by means of distress. It was a remedy of almost 
universal application. It was available for the 
recovery both of tributes and of ordinary debts, 
thus corresponding to both distress and the final 
execution of a writ of fieri facias in English law ; 
but it was equally applicable, and as freely used, 
for the recovery of all sorts of mulcts, forfeitures, 
penalties, and fines, and for the satisfaction of every 
species of liability. And since the Brehons reduced 
all liabilities of whatsoever original nature to material 
value to be recovered by distress, the modern dis- 
tinction between civil and criminal liability did not 
exist, and distress was applicable to every action and 
to every charge. Further, it was not alone the mode 
of executing a judgment, but also a mode of insti* 
tuting an action. Hence the disproportionate im- 
portance of this subject and the enormous amount 
of space occupied by it in the Brehon Laws ; and 
hence in the part of the Senchus Mor dealing 
specially with it nearly all other branches of law are 
mentioned incidentally. 

Whoever had any claim or complaint against 
another, either summoned that other or, by dis- 
training, obliged that other to summon him before a 
brehon, who decided which party was in fault, and 
assessed the amount that person should pay to the 
other. There was no sheriff or other public officer 
to execute the distress and realise the amount 
assessed ; the plaintiff, creditor, or person who had 



l6o THE BREHOH LAWS. 

gained the suit was obliged to do it himself; but in 
doing so he was bound to take with him a law agent 
in the character of a notary, together with witnesses, 
as a guarantee that the requirements of the law 
should be duly observed on both sides. He also 
took with him such assistants as the occasion 
suggested. A person distraining in this way does 
not appear to have been any weaker or less success- 
ful than is the sheriff in our time. " If a man who 
is sued evades justice, knowii^ the debt to be doe 
of him, double the debt is payable by him, and a fine 
of five seds." This provision made the defendant 
the party most interested in effecting a speedy 
settlement. 



SECTION III. 

DISTRAINT BY FASTING. 



ENERALLY a person 
before proceeding to distrain 
was bound to give certain 
notices. " A notice of five 
days is to be served on a 
debtor of the inferior grade, 
and then distress is to be taken 
from him." " A notice of ten days upon the debtor 
of chieftain grade." If the defendant was a chieftain, 
3 flaith, a brehon, a bard, or a bishop, the plaintiff 
was obliged to fast upon him in addition. "Notice 
precedes every distress in the case of the inferior 
grades, except it be by persons of distinction or upon 
persons of distinction ; fasting precedes distress in 
their case." The Troscead, or fasting upon one 
consisted in going to his house and waiting at his 




l62 THE BREHON LAWS. 

door a certain time without food. The text says, 
" He who refuses to cede what should be accorded to 
fastingy the judgment on him according to the 
Feini is that he pay double the thing for which he 
was fasted upon." This was a strong measure. And 
the commentary says, '* If the plaintiff has fasted 
without receiving a pledge, he gets double the debt 
and double food." Again the text says, ** He who 
fasts notwithstanding the offer of what should be 
accorded to him forfeits his legal right according to 
the decision of the Feini." Clearly the law did not 
suffer the mode of distress by fasting to be trifled 
with in any way. If the plaintiff, having duly fasted, 
did not within a certain time receive the satisfaction 
of his claim, or a pledge therefor, he forthwith dis- 
trained the goods as in the case of an ordinary 
defendant, and distrained double the amount that would 
have satisfied him in the fi^rst instance. Sir Henry 
Maine thought that fasting was regarded with a 
superstitious awe. I rather think the law, without 
superstition at all, was calculated to inspire a good 
deal of awe, and that the distinguished defendant, 
if he possibly could, paid the debt or gave a pledge 
in order to get the faster, as a dangerous nuisance, 
away from his door. 

Distress by way of fasting, now so strange to us 
because so long obsolete, was clearly designed in the 
interests of honesty and of the poor as against the 
mighty. How or why it assumed this particular 
form is not known, and shall probably never be 
known. It was not peculiar to Ireland, however. 



THE LAW OF DISTRAINING. 163 

A system precisely similar has existed in India from 
time immemorial, and exists in some parts of that 
country at the present day. It is called " sitting 
dhuma." There are also other points of resemblance 
between the native laws of India and the Irish laws. 
India and Ireland are too far apart in space, time, 
and historical connection for these resemblances 
to be more than coincidences due to similarity of 
occasion, or to some common cause acting on the 
minds of men, or to chance. 



SECTION IV. 



OBNBRAL PROCEDURE. 



RDINARY distress was of two 
kinds, " Distress with Time," and 
"Immediate Distress." In "dis- 
tress with time," the thing seized 
was subject to an anad, that is, 
a respite, or stay, which was a 
period varying in duration according to fixed rules. 
" The stay of every distress with time is the delay in 
pound of every immediate distress which has no stay 
at all." The debtor or defendant, on giving a pledge 
or security to the plaintiff, received back the thing 
distrained, and retained it in his own possession 
during this period. Also if the defendant or debtor 
desired to test on any ground in a court of law the 
validity of the claim or the legality of the distress, he 
was allowed a certain time for this purpose, provided 
he gave security. The security, was usually in the 
nature of a pledge, and might be any article of value 



THE LAW OF DISTRAINING. 165 

which he could spare at the time without inconveni- 
ence, or it might be a member of his family. A person 
so given was treated as a hostage, not as a servant 
or slave. He was treated as his rank entitled him 
to be treated. If in the event he was forfeited, the 
plaintiff would acquire a vested interest in him to the 
extent of his claim, and might then take that much 
out of him by reducing him to slavery or in any 
other way he thought he could best effect his object. 
Jf the pledge offered was adequate as a security, the 
plaintiff was bound to accept it, whether it was likely 
to be useful to him or not ; for the law did not con- 
template his making a profit out of it. If then the 
defendant did not bring the disputed point to a trial 
within the time allowed, as he had undertaken to do, 
the pledge became forfeited in satisfaction of the 
original claim. 

The peculiarity of " immediate distress " was, that 
during the fixed period of the stay the thing distirained 
was not allowed to remain in the debtor^s possession, 
but in that of the creditor, or in a For us ox pound of 
the district. This immediate distress was made, or 
might be made, if the plaintiff belonged to a higher 
rank than the defendant, and in some other circum- 
stances ; and the distrainor might bring to his own 
pound goods to the value of his own honour-price. 

In the case of " distress with time," if the debt was 
not paid at the end of the time, and in the case of 
''immediate distress," if the debt was not paid at 
once, the distrainor took away the things seized to 
his own residence or to pound according to circumr 



l66 THE BRBHON LAWS. 

stanceSi and served on the defendant a very explicit 
notice. '^Three things are to be announced at the 
residence of the defendant — the debt for which it 
[the distress] was taken, the pound into which it was 
puty and the law agent in whose presence it was 
taken." In other words, the defendant was put in 
possession of every material fact, in order that if so 
disposed he might take the proper steps to secure 
his interests. Treating of a negligent owner who at 
such a time omitted to take any steps, the text says, 
''To be asleep avails no one;/' the commentary 
says, '* Sloth takes away his welfare ; " and an olc] 
proverb says, "He is like a cow's tail, always 
behind." 

The distress remained in pound a certain time fixed 
by law according to its nature ; and if it consisted 
of cattki as it usually did, the expenses of care and 
keep accrued against it and was payable out of it for 
this time ; but if any profit or advantage was derived 
from the thing distrained, as the work of horses or 
oxen or the milk of cows, this was set off against 
the expenses. During the time in pound, which 
was called a dithim, the owner of the property seized 
might redeem it on paying the original debt, plus the 
net cost incurred up to the time of redemption. 
The plaintiff might, without risk, if he wished, allow 
three days of grace in addition to the legal dithim. 
At the end of the dithim, or days of grace if allowed, 
the property, if not redeemed, began to be forfeited to 
the plaintiff. It was not forfeited all at once even 
then, but progressively at the rate of three seds per 



^ji»l_^i Willi H« mpwi^ ^pi i^i^mi^VI « Vjl lliy-^RVW^PJP'^KVHmBHBI^ippaS^imP^il^PCp 



THE LAW OF DISTRAINING. 167 

day until the amount of the debt or fine or whatever 
the principal sum was, with costs, was realised. If 
the value of the thing distrained exactly equalled the 
liabilities, the plaintiff took all and the matter was 
at an end. If there was a surplus, it belonged to 
the original owner; if a deficit, a further distress 
might be made. The plaintiff would naturally be 
disposed to seize too much rather than too little ; 
but the law discountenanced his harassing the de- 
fendant in this respect, and inflicted a heavy penalty 
on any one who distrained unjustly, illegally, or with 
needless oppression. A heavy penalty was also 
incurred by any one who distrained where no debt 
was due. These penalties were all fines, of course, 
and the amount was doubled when the offence was 
committed with guilty knowledge. 

There were seven public pounds in the territory of 
eveiy clan. Of these the one most frequented was that 
situated in the most secure place near the centre of 
the territory, because in it the things detained were 
safest from external thieves who could not be easily 
brought to book. The laws contain elaborate rules 
for the regulation of all classes of things in pound, 
for liability in connection with accidents occurring to 
cattle there, or having a disease going there, or taking 
a disease in pound, and countless other possibilities ; 
and also special rules for every species of conduct 
that might be indulged in by either of the parties, 
and prescribing the proper course to pursue if the 
distress had been carried out in any essential not in 
accordance with the law. One specimen sentence 



l68 THE BRBHON LAW& 

from the text will sufficiently indicate the scrupulous 
care of the law. ** Every necessity is blameless ; 
every improvement is lawful ; every inadvertency 
is venial ; every wilful neglect is wrong." 

There were times at which debtors were entitled 
to certain exemptions from distress. On the death 
of the Ard-Rig of Erinn, and in Christian times on 
the death of the successor of Saint Patrick, every 
debtor [in Ireland who needed and claimed it was 
entitled to a year's exemption. On the death of the 
king of a province there was exemption within that 
province for three months. On the death of a rig- 
tuatha there was one month's exemption within that 
tuath. But of course it did not follow that debtors 
always took advantage of these periods of exemption. 
They were meant only as temporary relief from hard 
pressure, given to persons who claimed it bond fide. 
Debtors applied to at a time of exemption, who 
accepted notice, allowed themselves to be fasted 
upon, or otherwise acknowledged or acquiesced in 
the process going against them, and who were able 
to pay, were not allowed at the last moment to avail 
of the privilege of exemption, for that would be 
unfair. Every person on whose death such a period 
of grace would occur had during life the power of 
giving protection against distress, and so temporarily 
suspending the law, for the same length of time. 

As regards the nature of the things distrained, 
they were cattle for the most part, because they 
could be driven and had not to be carried; but 
cattle failing, any other farm produce was resorted 



»■ ■ u- 1. ; ^»^— ■ »< » ««»^y^^ w w II ^ 1 J ^pw^^^ fi | i | w ^i f^^i^^wfm I , J w ' ■ > » I ■ yim r 



THE LAW OF DISTRAINING. 169 

to, or any kind of property whatever. There was 
an order, well and generally known, in which different 
kinds of cattle should be taken in distress. Young 
cattle that were not giving milk or otherwise essential 
JFor the comfort of the family were liable, so far as 
they existed, to be distrained before those that were 
specially useful. In villages where smiths, carpenters, 
shield-makers, and other mechanics lived, not by 
land, but by their trades, the materials upon which 
they worked or any other property found in their 
possession might be distrained, but not their tools 
or anything essential to the practice of their trades. 
If a debtor or offender fled, leaving no property 
behind him, the property of his jftne might be seized 
as though it were his own for the amount of the 
debt or fine, and the members of the Jine were left to 
settle with the delinquent. People of the Bothach 
and Sen-Cleithe classes having no property that could 
be seized might be taken themselves in distress, and 
were bound to pay the debt or fine by their labour. 
While doing this their position towards the plaintiff 
resembled that of the daer fuidhir towards the flaith. 
When for crime or anything else fuidhirs became a 
distrainor's' object, he did not in the first instance 
distrain them, because the flaith was responsible. 
The law did not forbid him to chastise them, even 
to death; but of course religious and moral con- 
siderations and public opinion restrained him ; and 
on the whole it was the better and more usual 
course to fetter them, and so deprive the flaith of 
their services. The flaith might then either satisfy 



170 



THE BREHON LAWS. 



the demand of the distrainor and enjoy his fuidhirs, 
or surrender the fuidhirs to the distrainor in the 
manner of the noxal surrender at Rome. • A fuidhir 
so surrendered had very likely to work harder for 
his new master than for his old; but probably he was 
better fed to enable him to do this. Though the 
rules relating to the distraint and surrender of 
human beings are numerous, and no doubt were 
sufficient in practice for those who applied them, 
they do not always convey the desired amount of 
information to us of a different age. 




SECTION V. 



N general, no one could levy a distress but 

a person on whom a distress could be 

levied. He should have a Us and a macha 

(= a fold and a farmyard) in the territory. 

Hence none of the non-free classes could 

distrain, except possibly such few of them 

as had acquired wealth and advanced a 

good way up the social scale. A stranger 

coming to levy a distress could not do so, 

under Urradkus Law, without bringing a 

native of the territory with him as surety, 

provided he could get one without fee. If he could 

get no native to become responsible for him without 

payment, and was unable or unwilling to pay, the 

law gave him other means of attaining his object, 

but not of so speedy a character. Those other 

meaos varied somewhat, the lodging of a substantial 



172 THE BREHON LAWS. 

security being a common requirement. If a stranger 
failed to bring a surety in a case in which he was 
bound to bring one, or failed to lodge a security 
where he was allowed to do so, and attempted to 
distrain like a member of the clan, as by the cheap 
mode of fasting, not alone might he be evaded, but 
he was nonsuited and fined as an interloper. Under 
Cain LaWf however, a stranger could distrain directly 
without either a native surety or a security, provided 
he had a lis and a mocha in his own native territory. 
And if in such a case in making his distress the 
stranger was evaded, the person evading him was 
fined; because the latter was in his own country where 
he had every facility for maintaining his rights, if he 
had rights. If instead of paying or giving a pledge, 
as the circumstances required, he attempted to bafile 
the stranger, the law stepped in for the protection 
of the stranger ; and if in the result the stranger 
was able substantially to sustain his claim, it 
followed that the evasion of him was unjust and 
fraudulent, and it was punished as such. 

Some modern exponents of the Brehon Laws tell 
us that only flaith-Jines or heads of families could be 
sureties. Now this is another mistaken view. Not 
only were all the seventeen men of the fine eligible 
to become sureties, but they were bound in certain 
cases to become sureties for one another, and were 
liable as sureties even in cases where they had not 
expressly undertaken the responsibility. They were 
competent also to become sureties for other members 
of their own clan, but in this respect the flaith-fine^s 



THE LAW OF DISTRAINING. 173 

powers were more extensive than theirs » and he 
could become a surety for a person oetside the 
clan, which they could not. Kings, chiefs, brehons, 
officers of court, and others filling public positions 
were ineligible as sureties. The non-free were, of 
course, wholly ineligible. 




SECTION VI. 



UCH is a general outline of the law 
of distress. There were many rules 
regarding the legality of certain dis- 
tresses, the effect of exemption in 
different cases, and other differences, 
and curious and elaborate provisions 
for the execution of distress in the case of almost 
every animal and thing then held as property ; and 
further numerous differences arose from the numerous 
classes of suitors and defendants, and the modifications 
of honour-price and consequently of Hability caused 
by the progress of either or both parties in the scale 
of status, the arrest of that progress, and a great 
many other causes. The fines, distresses, stays, 
and all the processes of action were specifically 
adjusted to all these variations. There is hardly 
a way in which a wrong could be inflicted in countiy 



THE LAW OF DISTRAINING. 175 

life against which a special provision is not made, 
hardly a thing relating to property or its use or abuse 
for which a special rule is not given. These minute 
rules are far too numerous and intricate for discussion 
here. The same may be said of every branch of the 
Brehon Laws. Even so friendly a critic as Dr. 
Joyce has said it in his chapter on the subject, 
where he contrasts unfavourably the minute spe- 
cialism of the Brehon Laws with the adoption of 
broad principles of general application. He does not 
tell us, however, in what ancient laws the material 
for this contrast can be found, in what ancient laws 
broad principles have been actually adopted. It 
is hard to find even in modern laws. He leaves 
his readers to infer that the characteristic he con- 
demns is more observable in the Irish than in other 
ancient laws, and that the adoption of broad prin- 
ciples is easy and was easy to the brehons. Neither 
of these assumptions would as a general rule be 
correct. The tendency, however vain, to deal with 
particular cases, to relieve where the shoe pinches, 
is observable in all laws, past and present, even 
in countries having legislatures at hand to enact, 
amend, or abolish ; and as regards the liberty a 
judge should take in interpreting law, most modern 
judges uniformly and consistently shrink from laying 
down broad principles or extending any rule beyond 
the requirements of the case before them. Dr. 
Joyce's criticism, therefore, while applicable to the 
Brehon Laws, is also of far wider application than 
Dr. Joyce's readers are led to suppose. It may be 



176 



THE BREHON LAWS. 



observed, too, that for us this proneness to deal with 
particular cases and minute circumstances is not 
wholly a defect, since to it we owe our knowledge 
of many facts revealing to us the habits of the 
people. 



1 




CHAPTER VII. 
CRIMINAL LAW. 

SECTION I. 
THE BOOK OF AICILL. 

HE Senchus Mor is the 
greatest work on Irish 
n general, ctvil and 
I. As it deals with 
lie subject, the civil law 
pace than the criminal. 
Various branches of law are treated specially in 
separate treatises. The most important of these is 
the Book of AicilL It is taken up mainly, but not 
exclusively, with what we now call criminal law, and 
may be regarded as the Irish criminal code ; and it 
is this work that will mainly be referred to in explain- 
ing that code. It also contains some useful state- 

13 >J7 



178 THE BRBHON LAWS. 

ments of law relating to partnership, borrowing and 
lendingi and other transactions of civil life. 

The whole of the Book of Aicill is composed of the 
opinions or placita of two eminent m^n, illustrious 
in law and in other respects: The first was King 
Cormac mac Airt, otherwise called Cormac ua Cuinn; 
the second was Cennfaeladh the Learned. Cormac 
was one of the most deservedly celebrated of the 
monarchs of ancient Erinn. He was Ard-Rig from 
A.D. 227 until 266 (according to others from 218 until 
260). He was, as his names signify, the son of Art 
and the grandson of Conn of the Hundred Battles, 
both monarchs of Erinn, and he was the father of 
Cairbre who may be said to have succeeded him, the 
very short reign of Eochaidh alone intervening. He 
was also the father of Grainne, celebrated in the 
Fenian poetry of Oisin and his contemporaries. 
In youth he was violent enough, perhaps un- 
scrupulous in pursuit of power; but his subse- 
quent life proved that his ambition rose from the 
solid basis of ability to rule men; and to this 
extent, as also by the use he made of power when 
acquired, he justified himself. He was a great 
reformer of the national institutions of his time, 
civil and military, including the Feis of Tara ; and 
most of the traces of its former greatness now existing 
at Tara are attributed to his time. Consistently 
with his reforming spirit, he was a great patron of 
literature, art, and industry, the first of whose 
patronage we have undoubted evidence. He either . 
wrote himself or procured the writing of several 



i^mmmmmmmiiimm^smmmmmsmmmm^mmmmmmmmmm 



CRIMINAL LAW. 179 

works on law, history, and other important subjects. 
Some of these works on subjects other than law were 
still extant so late as the seventeenth century, but 
appear to have been since destroyed or lost. Among 
the useful things for which the country was indebted 
to Cormac was the introduction of the water-mill. 
He had the first mill erected on a small stream on 
the slope of Tara. He was a man in many respects 
far in advance of his time. Though living long before 
Saint Patrick's arrival, and king of a pagan nation, 
there is reason for thinking that he was a believer in 
Christianity before his death. He at all events 
ceased to believe in the pagan gods. 

^* Crom Cruach and his sub-gods twelve," 
Said Cormac, ** are but craven treene : 
The axe that made them, haft and helve, 
Had worthier of our worship been. 

** But He who made the tree to grow, 
And hid in earth the iron stone, 
And made the man with mind to know 
The axe*s use, is God alone. 

** Spread not the beds of Brugh for me 
When restless death-bed's use is done. 
But bury me at Rosnaree, 
And face me to the rising sun. 

" For all the kings that lie in Brugh 

Put trust in gods of wood and stone ; 
And *twas at Ross that I first knew 
One, Unseen, who is God alone." 

According to one Gaelic authority Cormac was the 
author of the text of the Book of Aicill throughout. 



l80 THE BRBHON LAWS. 

and Cennfaeladh afterwards modified and commented 
on the whole of it, besides adding some of the case 
law which had grown up in the interval. And I am 
inclined to think that this view is correct. However, 
the introduction to the Book of Aicill gives a different 
account, and naturally it is that usually accepted. 
It begins thus : — " The place of this book is Aicill, 
close to Tara, and its time is the time of Coirpri 
Lifechair (Carbre of the Liffey), the son of Cormac, 
and its author is Cormac, and the cause of its having 
been composed was the blinding of the eye of Cormac 
by Aengus Gabhuaidech." Owing to the loss of his 
eye, Cormac became incapable under the Irish law 
of retaining the sovereignty, "because it is a pro- 
hibited thing for one with a blemish to be king at 
Tara." The sovereignty was transferred to his son, 
after a temporary usurper had been got rid of, and 
Cormac retired to Aicill, now called Skreen, near 
Tara. It is stated that in difficult cases he was con- 
sulted by his son the young king. However this may 
be, a great deal of the Book of Aicill is written as if 
in answer to questions submitted, and the answer in 
each case begins with the words, " My son, that thou 
mayest know." 

It was on account of this injury to his eye that 
Cormac expelled the Deisi from the district in Meath 
still from them called Deece, and drove them to 
Munster where they settled and gave their name to 
a district there also. 

Having told where, when, on what occasion, and 
by whom, the book was first written, the introduction 



"S*^ 



^ip 



Mll^'i'' 



■■V^ 



^^^IP 



OTi 



^iii^ 



CRIMINAL LAW. 



I8l 



proceeds : — ** These were the place and time of it as 
far as regards Cormac. But as regards Cennfaeladh^ 
its place is Daire Lurain (now Derryloran, in Tyrone), 
and its time was the time of Domhnall, son of Aedh, 
son of Ainmire ; and its author was Cennfaeladh, son 
of Oilell, and the cause of its being composed was 
that part of his brain was taken out of his [Cenn- 
faeladh's] head after it had been split in the battle of 
Magh Rath." The Domhnall (Donal) in whose 
reign this occurred was monarch of Ireland and 
fought the battle of Magh Rath (now Anglicised 
Moira) in a.d. 634 (?642) against Congal Claen, 
king of Uladh. 

The foregoing statements are remarkably clear and 
explicit. They represent the Book of Aicill as the 
production of two authors, one writing in the third 
century, the other in the seventh. Notwithstanding 
this, Sir Henry Maine, the standard authority on 
ancient law, in his learned discoveries of "village 
communities " where they never existed, represents 
Cennfaeladh as assisting Cormac! Worse still, I 
find an Irish author saying gravely that Cormac 
was just the man to appreciate Cennfaeladh's 
.services! Granted that Cormac was highly en- 
dowed, still the power of appreciating services 
rendered more than three hundred years after his 
own death can hardly be conceded even to Cormac mac 
Airt ; and if he had such power, any express recog- 
nition of Cennfaeladh's services would then have 
been rather premature. 

We are told that Cennfaeladh (Kenfaela) was a 



I 



182 THE BREHON LAWS. 

soldier, not a lawyer. I would rather describe him 
as a soldier and a lawyer, and much besides. Having 
bepn wounded in the battle of Moira, the commentary 
goes on to say of him, *' And Cennfaeladh was 
brought to the house of Bricin of Tuam Drecain 
(now Toomregan, in Cavan) at the meeting of the 
three streets, between the houses of three oUamhs. 
And there were three schools in the town, a school 
of literature, a school of law, and a school of poetry. 
And whatever he used to hear rehearsed in the three 
schools every day, he had by heart every night ; and 
he put a fine thread of poetry about them, and wrote 
them on slates and tablets, and transcribed them 
into a paper book." This was the way in which 
Cennfaeladh spent his time while recovering from 
his severe wound; and there is a characteristic 
explanation given of his wonderful memory, namely, 
that the brain of forgetfulness had been taken out of 
his head by the sword by which he had been wounded. 
Throughout the Ancient Laws occasional touches of 
fancy like this are met with, thrown in apparently 
by way of ornament, and possibly as an assistance 
to young students in learning these laws. Saint 
Bricin kept a school at Tuam Drecain ; and Cenn- 
faeladh appears to have done part of his work there 
and part at Derryloran. 

Commentaries written by lawyers of later times 
run through the Book of Aicill as through the Sen- 
chus Mor. According to these, the part of the Book 
of Aicill in which occur the introductory words, 
" My son, that thou mayest know," and the part 



mg^mmt^mmmmmm 



■^ 



m^mm^f^mmmmmift^^^^^m 



CRIMINAL LAW. 



183 



called " the exemptions," are all the work of Cormac, 
and the remainder of the book is the work of Cenn- 
faeladh. Cennfaeladh re-wrote the whole work, and 
in doing so he probably modernised it to some extent 
in effect and in form of expression, and harmonised it 
with the requirements of Christianity after the ex- 
ample of the Senchus Mor. One may say in our 
present language that Cennfaeladh brought out a 
new and revised edition of King Cormac's work. 




THE LAW THEREIN LAID LOWN. 

T is commonly said that no distinction ex- 
isted in the Irish laws between civil and 
criminal liability. A distinction did exist, 
but it was not the same as that in English 
jurisprudence. The common punishment 
of all sorts of crimes and all sorts of civil 
wrongs was indeed a line, varying in 
amount according to the nature of the 
act, to be levied on the property of tlie 
offender like a civil debt. All proceedings, 
whether for a crime, a tort, or a breach of 
contract, were identical in origin and prosecuted by 
the same persons and generally in the same manner. 
The State did not prosecute, but left individuals to 
prosecute in criminal as well as to sue in civil cases. 
The taw did not set up crime as a species of liability 
distinct from civil wrong. Still there were important 



I. wm.K<m--.m «mi M,»\ mwima^miim\'mf mi'i' .mi^^!^'i^^'9^^i'^mmmiww^'9mmmmmt^mm^mm''^im 



CRIMINAL LAW. 1 85 

points in which criminal differed from civil liability. 
It differed first in the moral nature of the act by 
which it was incurred ; and this was a legal differ- 
ence so far as the law enforced it. There is here a 
confusing of law with morality, which some English 
legal authorities are at such pains to keep asunder 
or in antagonism. Theirs is trouble ill-bestowed, 
and vainly, because its object is unnatural. Until 
human nature itself is changed law .and morality 
will, in spite of lawyers' theories, be in fact and be 
generally considered closely related. And it can 
hardly be denied that wilful civil wrong is oftentimes 
the medium of base moral crime. Another difference, 
sometimes of importance, was, that, in civil cases 
the defendant frequently had the right of choosing 
the judge. This arose from any one of certain 
causes. For example, if the plaintiff distrained as 
the first step in an action, as he might do when his 
claim was for a liquidated amount, the defendant 
was driven to the necessity of either submitting to 
the distress or taking the case before a brehon. 
Criminal cases, the amount obtainable not being 
liquidated, had to be submitted to a brehon in the 
first instance, and hence the person against whom 
a crime had as a fact been committed chose the 
brehon. Then the subsequent effects upon status 
and legal competence were entirely different. 

Persons against whom crimes had been committed, 
or if. they had been killed their immediate relatives, 
were left to sue out redress, just as in civil cases, 
by summoning the offender to appear before a 



l86 THE BRBHON LAWS. 

brehon, who heard the case and assessed, according 
to the principles of law and justice, the amount of 
fine that should be paid as compensation ; and then^ 
if the defendant did not pay immediately, by levying 
a distress on his goods. There were no prisons, 
except in communities to which small islands or 
other natural prisons belonged, and there were 
hardly any public servants who could correctly be 
called police or detectivea The people were their 
own police, and their activity in that character was 
spurred and sharpened by the knowledge that a sept 
had to pay for a secret crime committed in the part 
of the territory assigned to it, unless it were shown 
that the crime had been committed by an outsider. 
This liability of the sept continued so long as the 
criminal lived, whether his crime was one against 
person or gainst property. But on his death 
happening, whether as punishment for the crime or 
from natural causes, a difference arose. If the crime 
was purely personal, the liability of the sept was at 
an end, for ** the crime dies with the criminal ; " but 
if it had caused damage or loss of property, the sept 
still remained liable for this net loss. Every clan 
and every clansman had a direct monetary interest 
in the suppression and prevention of crime. The 
higher motives by which Irishmen were undoubtedly 
actuated were, however, far more effectual. The 
whole public feeling of the community was entirely 
in support of the law — a signal proof of its suitability. 
Evasion of law and concealment of lawbreakers, 
which alien laws afterwards made so popular in 



'w^^^P^'^^^WW^»"""^FIKi»"^^'^^"^Wl^Wi«wpi^""""^i^«»^^"«^-»«^-^IP^-^^^^i^"«»^Pi^^^F^»^""*^P»^^^iii^^PBW 



CRIMINAL LAW. ,187 

Ireland, were then little known. Both in popular 
estimation and in fact the honour and the interests 
of all, of community and individual, were involved in 
the maintenance of the law. Law supported by 
public opinion, powerful because so inspired, power- 
ful because unanimous, was difficult to evade or 
resist, though there were no men in livery to enforce 
it. It so strongly armed an injured person, and so 
utterly paralysed an offender, that an escape from 
justice was har41y possible. The only way in which 
it was possible was by running away, leaving all 
one's property behind him, and sinking into slavery 
in a strange place ; and this in effect was a severe 
punishment rather than an escape. So long as an 
offender had property, the motive for flight was not 
so strong as it is with a criminal of the present day ; 
for the brehons do not appear to have taken on them- 
selves to pronounce the death sentence at all, but 
only the amount of compensation. In some cases ^ 
of a criminal caught in the act, the person against 
whom he was offending had a right to fetter him and 
detain him wherever he pleased until judgment was 
pronounced and satisfied. 

If a criminal did abscond without paying the 
penalty of his crimes, any property he left behind 
him was applied to the payment of it pro tanto. If 
not fully satisfied, the liability for the remainder fell 
first upon the criminal's immediate relatives who 
were entitled to inherit his property. If not satisfied 
by them, it extended throughout the fine and the sept 
even to the clan if necessary. The only way in 



1 



l88 THB BRBHON LAWS. 

which the immediate relatives, being able to pay, 
could escape liability was by giving up the offender 
to the injured family. The right to recover and the 
liabilty to pay were alike based on the rules of kin- 
ship explained in connection with the clan system. 

The names of the fines are retained untranslated, 
for reasons already mentioned. They were eiric or 
eric, reparation ; dnachlan, honour-price (not strictly 
a fine) ; dire, fine ; coirpdire, body-fine ; smachi, 
usually a fine of five seds ; and airer, a fine amount- 
ing to one-seventh of the honour-price. Eric is 
defined as the fine for separating body from soul, 
that is for killing, whether murder or manslaughter. 
But of course the amount of it was not the same in 
these cases ; for one of the most important distinc- 
tions made by the law in crimes was the presence or 
absence of intention. A man who happened by pure 
accident to kill another who was about his lawful 
business did not go wholly unpunished, as such a 
one does here at the present time. Having destroyed 
human life and inflicted an irreparable injury on 
a family, he had to pay eric to the family of the 
deceased, and so alleviate suffering by sharing it. 
But one who committed wilful murder with malice 
aforethought had to pay at least a double fine. As 
an English lawyer would express it, the eric for 
murder was double that for manslaughter. So the 
translators tell us, and they are supported by the 
commentary which says, " The double of honour- 
price is due to each and every person for the crime 
of secret murder." Still it is conceivable that the 



i9S9S^«Bfl 



wm 



^mtmimw}^ 



■••'■■ -W'J 



CRIMINAL LAW. 



189 



word diabalta might be as correctly translated two- 
fold ; for there were really two fines imposed, in 
some cases three, and they were not always equal 
in amount as the word double implies, since they 
started from different bases and the amount of each 
was affected by a different status and a somewhat 
different combination of circumstances. I find it 
laid down in one place that there were three fines 
imposed on a murderer, (i) his own honour-price ; (2) 
seven cumhals for the homicide itself; (3) twice 
seven cumhals if maHce was proved. I do not know 
of what rank this is said ; but the actual amounts 
were affected by the different ranks, as well as by the 
facts and peculiar circumstances of each particular 
case, and each of the parts of the fine was in every 
case the subject of a separate and independent 
calculation. 

Some loosely written passages in the commen- 
taries have been interpreted, I think incorrectly, as 
meaning that the amount of fine which a murderer 
had to pay in order to avoid the liability of being 
put to death was his own honour-price. This would 
mean that the eric of the slain would always be 
equal to the honour-price of the murderer ; a thing 
which, so far from being the rule, could hardly ever 
occur in practice. It could occur only when the 
slayer and his victim belonged to precisely the same 
rank and there were no circumstances to either 
extenuate or aggravate the guilt. As these essential 
conditions could scarcely ever be satisfied, the 
amount of simple eric could scarcely ever tally 



igo THE BRBHON LAWS. 

with the murderer's honour-price. But still less 
could the double and triple eric mentioned so tally. 
Eric and honour-price were, both in theory and in 
fact, wholly different things. Eric was strictly a 
fine regarded from the point of view of the party 
who had to pay it ; but its amount was determined 
not by his status but by that of the victim. Honour-^ 
price was the assessed value of status; and, as 
applied to fines, the status in this case might be 
that of the criminal. 

The eric (=reparation) was given, as its name im- 
ports, to the relatives of the person slain, in the 
proportion in which they were entitled to inherit his 
property, that being also in accordance with the 
degree of relationship, and usually with the degree 
in which those persons were really sufferers. In the 
Middle Ages all the parts of the fine were called 
comprehensively eric, and were so distributed. 
While Ireland had a monarch of her own he was 
entitled to one-third of the honour-price of every 
murderer in Ireland. If he was a **king with 
opposition," that is one whose title was disputed, he 
was entitled to only half this amount. 

The same law that arranged the different ranks of 
society, and fixed their respective rights, privileges, 
and liabilities, affixed also to each rank, from king 
to plebeian, a measure of value called honour-price. 
By crime, and by breach of contract, this honour- 
price was forfeited, wholly or partially according to 
the magnitude of the wrong, to the person injured, 
with or without fines of other denomination accord- 



CRIMINAL LAW. IQI 

ing to circumstances. By the taking of human life 
in any way, and by a few other capital crimes, the 
whole of the honour-price was forfeited, and if not 
paid and accepted in satisfaction the injured person 
or family had a right to put the criminal to death. 
Even should the criminal be allowed to live, if no 
satisfaction was rendered his tribal status was com- 
pletely gone. In the case of certain peculiarly vile 
crimes, which need not be further specified here, 
the criminal was expelled from the clan and from 
the territory, even though the fine had been re- 
covered. A habitual criminal might also be ex- 
pelled, and by expelling him, and lodging a security 
against his future misdeeds, his relatives could free 
themselves from responsibility. A person so ex- 
pelled became an outlaw, with no status or right 
whatever, no legal capacity, and no protection from 
the law, and any one who gave him food or shelter 
became liable for his crimes. There was little 
danger of any one succouring him, for in general 
public feeling was as much against him as the law, 
and he was forced to go into a strange place, where 
he could only sink into the lowest rank of fuidhirs. 
If he still haunted the territory of the clan, and 
continued his crimes there, he was proclaimed in 
the public assembly of the clan. After this any 
one might kill him as a wild beast or a mad dog. 
Crimes less than capital, as lying, perjury, fraud, 
and in the case of a judge a false judgment, if com- 
mitted three times deprived the offender of half his 
honour-price, if committed any more deprived him 



192 THE BREHON LAWS. 

of the whole of it. Accomplices in crime, and 
those who aided and abetted crime, were dealt with 
almost as severely as the actual criminal. In no 
case was the fine imposed on a criminal the full 
measure of the punishment. Besides the general 
odium, there resulted a loss of status with its legal 
consequences of disqualification for holding public 
ofiice, for suing, for being a witness, a surety, a 
juror, and incapacity to inherit land. How long 
this condition lasted is not stated ; but it was not 
permanent. 

The amount of a fine, under whatever name it 
came, was not determined by abstract principles of 
general application, but in each case by the facts 
proper to that case. The maintenance of the law 
and of private rights were indeed principles affecting 
the ultimate decision ; but the chief factors in 
determining the amount of penalty for any given 
crime were, (i) the damage done ; (2) the status of 
the injured person ; (3) the status of the criminal ; 
(4) the accompanying circumstances. The result 
was that like punishments did not always follow 
like crimes. The rules of law on the subject were 
necessarily very numerous and complicated, owing 
to the great number of classes into which society 
was divided and the consequent variations in status 
and honour-price ; and although when the facts 
were clearly ascertained the proper amount of a 
fine may be said to have been a matter of calcula- 
tion, yet it was a calculation which required con- 
siderable technical skill, as d,id also the ascertain- 



p^^W^^piii mn ^ 1^1 I 



CRIMINAL LAW. ig^ 

ment of the facts. A fine for a breach of contract 
was generally more simple, as it would depend 
largely on the terras of the contract broken. 

In adjusting punishment to rank, account was 
taken also of professional character. The clergy, 
for instance, were far more severely punished than 
the laity — a fact showing, if it were necessary, that 
Saint Patrick did not abuse his influence when the 
laws were being drawn up. When a lay criminal 
had paid the eric or other fine imposed upon him, 
he rested under a stigma and loss of status for some 
time; but after this probationary period he recovered 
his honour-price. A convicted clergyman could 
never recover his honour-price, could never regain 
his former status ; and from the state of his sur- 
roundings he was scarcely free to do anything else 
but retire from the world and do penance. 

. Rank did not always affect the amount of fine in 
the same way. A naan of high rank was always 
fined more than a man of low rank in a like case. 
An offence against property committed upon a poor 
clansman who could ill afford it, was punished more 
severely than a similar offence upon a wealthy 
person. An assault or other personal outrage upon 
a person of rank was more severely punished than a 
similar offence upon an ordinary person. 

Fines, like other payments, were ail paid in kind. 
When the offence was one against property, and 
the fine was small, it was usually arra^ that is 
genericy a quantity of property of the same kind as 
that stolen or damaged. For damage done to bees, 

14 



194 '^^^ BREHON LAWS. 

for example, the fine would be so many kishes (hives). 
In the case of property not so conveniently divided 
as bees, the quantities were usually measured in 
seds or in screpalk. A screpall was ^th of the 
value of a cow. A large fine was anarra, not 
generic, not consisting of the same substances as 
those stolen or injured. It was usually adjudged to 
be paid in three different substances, as one-third in 
homed cattle, one-third in horses, one-third in silver. 
If in com it would be one-third in wheat, one-third 
in oats, and one-third in barley. In fixing the kinds 
the brehon should have regard to the actual nature 
of the defendant's property. A judgment obtained 
by a plaintiff for the payment to him of a fine in a 
particular kind of property which the defendant did 
not possess was called a ^' blind nut," because it 
was ineffectual; and if it had been obtained un- 
fairly or for any sinister purpose it debarred the 
plaintiff from seeking a different judgment. When 
the liability was of a civil nature, but arose in the 
absence of any express agreement between the 
parties, the judgment was a general one, and the 
defendant was allowed to pay the fine in whatever 
material he could most conveniently spare. The 
plaintiff had to be satisfied, because the law con- 
sidered that if he had desired to secure for 
himself on a foreseen event a fine of a particular 
description, he ought to have made a bargain to 
that effect. 

For an offence committed against himself, as 
distinguished from one against his property, the 



iigiT < w i* lwirii 'i w '' * " i i u 



CRIMINAL LAW. IQS 

plaintiff obtained a general judgment which he was 
entitled to realise out of any property belonging to 
the defendant that he pleased. If the defendant 
preferred to pay in any particular kind, he should 
offer it promptly. The judgments ran — so many 
screpalls for a white wound, so many for a red 
wound, so many for a lump blow, so many for a 
wound which left a mark on the face, so many for 
one which left no mark. These amounts, however, 
were only fixed by the law for the brehon's guidance, 
and subject to increase or diminution by him accord- 
ing as negligence on the one side, contributary 
negligence on the other, provocation, self-defence, 
accident, or any other modifying element appeared 
in the case. Subject to such modifications, minute 
regulations are laid down for a vast number of 
conditions, occupations, and circumstances, and the 
various offences connected with them. Of crimes 
directly against the person, the more serious have 
been noticed in connection with eric and honour- 
price. All fines were what we should consider 
heavy, fines for crimes against the person especially 
so. A fine of two cows was very heavy for a lump 
blow, that is, a blow which raised a lump but did 
not draw blood. And the same was the fine infiicted 
for shaving a man against his will. I think it meant 
shaving his head. This was an ignominious form of 
punishment in England under Alfred, and it may 
have been so in Ireland as well, and therefore if 
done without authority of law it would be particu- 
larly outrageous. It must also have been peculiarly 



196 THE BRBHON I«AWS. 

aggravating among a people like the Irish who took 
pride in their long hair. They knew how to punish 
it at all events. But it must be remembered that 
the amount of a fine was affected by the status of 
the criminal as well as by that of the person he had 
outraged, and the heavy fines started in the text 
applied only to aires or persons of full status who^ 
as such, were wealthy. It is also fair to point out 
that the punishments of ancient laws were generally 
severe, some of them much more so than those of 
the Irish laws. Take a specimen from the dooms 
of Alfred, the model English king: — "He who 
curseth his father or mother, let him perish by 
death." 

If one wounded a man who was the sole support 
of a family, he was fined for the actual injury, he 
had to pay for the medical and surgical attendance, 
and he had to pay a substitute to carry on the 
injured person's business. Fines are laid down for 
injury resulting in the loss of limbs, eyes, and all 
members ; and the amount was affected by, among 
other things, the use the person was accustomed 
to make of the limb before its injury. One who 
knocked the nail off the finger of a harper was fined 
more than if he had inflicted a similar injury upon 
any other person. Another element sometimes 
presenting itself in calculating the amount of fine 
to be paid for a crime was, that the accused might 
have been provoked by some antecedent crime of 
the accuser. If this was shown, and the previous 
offence was one of which the law took cognizance, 



CRIMINAL LAW. I97 

the judge was allowed to apply the principle of set- 
off, as were the judges of England according to the 
Laws of Henry the First. 

Fines are carefully laid down for cattle-stealing, 
the laceration or injury of living cattle by dogs or 
otherwise, and trespass upon land. This latter was 
divided into man-trespass and beast-trespass. The 
forms of man-trespass most frequently dealt with 
were felling trees on another person's land and 
taking them away, and cutting turf, rushes, &c., 
on another person's land. The form of beast- 
trespass most severely dealt with was that of pigs, 
because they not alone eat and trample upon a crop 
but root it out of the earth. For the trespass of a 
large pig in a growing crop the fine was a sack of 
com. For the trespass of a middle-sized pig, half 
a sack. For the trespass of a sucking-pig, two 
mamSf a mam being all the corn it is possible to 
raise between the two hands. Other matters of 
frequent occurrence in the laws are the bites and 
other forms of damage done by dogs ; meddling 
with another person's bees ; bees stinging strangers 
and blinding or killing them ; bees stinging the 
various kinds of cattle and driving them furious; 
dangers connected with the felling of timber, the 
building of houses, the works of smiths, weavers, 
threshers, millers, kiln owners, &c. If an idler 
coming uninvited about such works was accidentally 
struck, he should put up with his injury. A person 
on lawful business so struck should be fully compen- 
sated ; unless he had been warned, either expressly 



198 THE BREHON LAWS. 

or by the noise of the work, and had disregarded the 
warning. Rules are also laid down for cases of 
fellow-workmen hurting one another. There are 
rules regarding the management of horses at a fair, 
and liability arising from damage done by them ; also 
regarding damage done by vicious horses. Many 
rules relate to ferries, there having been more water 
in the country formerly than nowj and fewer bridges. 
There are rules regarding the mistakes and mal- 
practices of doctors. It appears that, unless under 
special agreement, a doctor could recover his fee 
only on the patient getting well. In a dangerous 
case in which an operation, as the amputation of 
a limb, became necessary, a doctor should take an 
indemnity against liability for the fatal termination 
of his operation. If he was not a duly qualified 
doctor he should give notice of that fact to the 
patient and his family. If one suffered, from crime 
or accident, an injury at first apparently slight, and 
got judgment for a small amount, and afterwards, 
without fault of the doctor, the injury " came 
against" the patient seriously, or became fatal, 
the person to blame was liable to a second trial, 
but in this regard would be had to the amount 
recovered under the previous judgment. 

In short, here as elsewhere, the brehons endeavour 
to deal with all cases and all varieties of circum- 
stances. They lay down special rules for every 
relation of life known in their time and every detail 
of social and domestic economy, and some rules 
relating to conditions so obsolete that their nature 
can now only be conjectured. 



SECTION III. 

CAPITAL PUNISHMENT. 

HE fact that the Irish 

took compensation for 

instead of putting the 

er to death, has been 

' laid hold of by some 

ii,ngiisn autnors ana journalists as a national 

reproach, which, with characteristic courtesy, instead 

of overlooking as a thing of the dead past, they 

delight to utilise. It would be foreign to my present 

undertaking to discuss the abstract question, whether 

it is better on the one hand when one man has been 

killed to kill another and make no reparation to the 

sufTerers by the Rrst death, or on the other hand, to 

make reparation out of the murderer's property and 

spare his life. The latter course is prima facie the 

more humane, and either side of the question is 

quite arguabla It is with the superior critics I am 

for the moment concerned. Those gentlemen with 






200 THE BRBHON LAWS. 

their readiness to criticise must be assumed to 
know, and with that delicacy of conscience by 
which they profess to be moved might be expected 
to state, that the law of making reparation for 
murder, be it good or bad, so far from being 
peculiarly Irish, was formerly almost universal. It 
was practised by, amongst others, their own an- 
cestors — ^that is, if it be possible to determine who 
were the ancestors of a hybrid people. It was 
practised by the ancient Greeks, and in later times 
by the Lombards, Gauls, Franks, Swedes, Danes, 
Germans, and Saxons, the only difference being that 
while the laws of those nations imposed fixed and 
rigid fines for the murder of specified persons, the 
Irish laws always allowed fines to be reduced or 
increased by mitigating or aggravating circum- 
stances. The Anglo-Saxons called the price or 
value set upon a man his wergild, the same as the 
German wehrgeld, the amount of which depended 
mainly upon rank and the amount of property 
possessed, and the nature of which does not seem 
to have at all differed from the Irish honour-price. 
The wergild is met with all through the old English 
laws. But one had better be specific. It is met 
with in the laws of Ine, of Alfred, of Edward the 
Elder, of ^thelstan, and of Edmund, who appears 
to have encroached upon it. He did not extinguish 
it, however, for it appears in the laws of Ethelred, 
of Cnut, of Edward the Confessor, and of William 
the Conqueror ; in the latter case the mode of its 
distribution being laid down^ the lai^est portion 



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CRIMINAL LAW. 201 

being given to the widow of the man slain, and the 
remainder divided among his nearest surviving 
relatives. In the code or compilation called the 
Laws of Henry the First, the wergild appears as a 
clearly recognised part of the existing law, and the 
amount o£ it is specified for parricide and all the 
graver crimes committed by or against the various 
classes from king to peasant ; and the only variation 
of the fixed amounts that appears to have been 
allowed was, that they might be increased if the 
crimes had been committed on holy days, as Sunday, 
Ascension Day, Lady Day, All Saints' Day, &c. 

These are historical facts recorded on authority 
which Englishmen would be the last in the world 
to question. Any one may read them, and it is an 
Englishman's duty to know and remember them 
when he feels tempted to make himself ridiculous 
by thanking God that he is not like the rest of men, 
and assuming sanctimonious airs, to which nobody 
but himself thinks he is entitled. It may be said 
that they are very ancient facts. So are the Brehon 
Laws. It was possible to compound a felony in 
England until the power to do so was abolished in 
1819 by the now meaningless looking statute, 59 
George the Third, chapter 46. That is not very 
ancient. Until 7 and 8 George the Fourth, chapter 
28, was passed, a man who^ fled from trial, forfeited 
all his goods and chattels, even though as the result of 
the trial he was acquitted. That is not very ancient. 
Until 54 George the Third, chapter 146, the dead 
bodies of victims of the law were not sacred. Of 



202 THE BREHON LAWS. 

course it will be argued, and with truth, that many 
things are possible under the law long after they 
have ceased to be practised ; and, you know, every 
conceivable excuse must be urged when the English 
character is assailed. Excuses exist only for English 
consumption. It never at any time was possible 
to say of the courts of the brehons as Hallam says 
of the courts of the Tudors, that they were " little 
better than caverns of murderers." And if we turn 
to what was actually practised in England in times 
still more modem, what do we find ? We find that 
a prisoner was not allowed before his trial to know 
anything of the case against him, was not even told 
the name of his accuser, was given no reasonable 
opportunity for preparing his defence, while the 
State paid for preparing the case against him ; and 
if found guilty — as well he might be in such cir- 
cumstances, though innocent — the sentence might 
be death, or breaking of limbs, or stretching on the 
wheel, or cutting out of his tongue, or gouging out 
of his eyes, or clipping of his ears, or a combination 
of several of these. I should be sorry to suggest 
that there is a decent Englishman living to-day who 
would not shudder and blush at the long catalogue 
of unfortunate human beings who, under every one 
of the four Georges, were after every assizes put to 
death or subjected to the other grim barbarities 
mentioned, in many cases for offences for which a 
flogging or a month's imprisonment is now deemed 
sufl&cient punishment. Those punishments were so 
many fragments of the savage law of vengeance, 



" SJU*" VJ p i' ■ ^ I mimu w 



CRIMINAL LAW. 203 

carried out, not by the sufferer or his friends, nor in 
their interest, but by the State, and as likely as not 
carried out on the wrong persons. They are recalled 
in no spirit of antipathy to the Saxon, for though a 
Gael of the purest blood I entertain none ; nor are 
they recalled to make him ashamed of his ancestors, 
for we all have enough to do to keep our own lives 
pure ; but they are recalled as common knowledge 
which it is his special duty to possess, and the 
possession of which should moderate his conceit to 
becoming limits, since it shows that, after all, he is 
not so much superior to the rest of men, and that 
in this very matter in which he presumes so much, 
we have at least as good ground for pride. No 
doubt it is very good of him to desire that his 
ancestors should be spoken of only with charity^ 
We quite agree — because they need it. For ours 
all we desire is justice. His reproach amounts in 
substance to this, that our ancestors were more 
humane than his, and have not so much innocent 
blood on their heads. But for his modesty no doubt 
he would add, in further proof of our national de- 
pravity, that our ancestors never had any witches to 
burn, and never made the schoolmaster, as such, a 
criminal. It would be to his advantage to remem- 
ber, what he cannot prevent the world at large from 
knowing, that his present perfection in this par- 
ticular, as in many others of which he boasts, has 
not been evolved from his own inner essence, but is 
due to external influences acting on him, sometimes 
acting very much against his will. There is ample 



204 THE BRBHON LAWS. 

space in this world even for Saxon mediocrity in 
borrowed Norman plumes; but it must not disregard 
the fitness of things and presume to lecture where it 
can more profitably learn. 

Stilly having resented cant, one is free to say that 
possibly the principle of reparation would have given 
place to the death penalty as in England, or (more 
likely) would have been made an accompaniment of 
the death penalty as in France, had Ireland been 
ruled as those countries were by a competent central 
government. For centuries its nominal government 
was incompetent and external 

At a very early period in Ireland, as elsewhere, 
the acceptance of eric may have been optional. 
The family whose member had been murdered 
might not seek eric, or might reject it if offered, 
and proceed to revenge. Also, if a murderer unable 
to pay eric was surrendered by his relatives to the 
family of his victim, the latter might kill him if they 
pleased if nobody intervened to save his life by 
paying the eric. I believe the Brehon Laws do not 
expressly forbid persons suffering actual personal 
outrage to chastise a criminal caught redhanded ; 
and there is even a passage translated in these 
words : " A person who came to inflict a wound 
on the body may be safely killed when unknown 
and without a name, and when there was no power 
to arrest him at the time of committing the trespass." 
The English law in force this day contains a pre- 
cisely similar tacit allowance, even to the extent of 
taking life. Then it must be remembered that we 



.- . * ^ — ' — - - 



. j^.^*^.,jujju^u*juj^u9wmjmiim^mmmmmmmmr^;y^^im'mmmr'im 



CRIMINAL LAW. 205 

possess not the whole Brehon Laws as the people 
understood them, but only the parts written for the 
guidances of judges and lawyers in the trial and 
treatment of offences brought before them, that 
much of human life never came before them, and 
that some abstract considerations which occur to us 
many centuries after date either did not occur to 
them at all or did not clamour for settlement. 

It is quite possible for the law of reparation and 
lex talionis, or law of personal vengeance, to exist side 
by side in the same country as alternative modes of 
redress. Indeed, they appear to have so existed in 
many countries. Eric itself may be regarded as a 
species of retaliation as we use that word ; but it 
was a distinct improvement on the strict talio of 
the Roman Law — Si quis membrum fregity ni cum eo 
placit, talio esto. In pagan Ireland, as far as I have 
been able to gather, a wilful murderer was regarded 
as lost soul and body, and possibly even though eric 
had been obtained his life might or might not be 
taken at the will of the prosecutor. It is pointed 
out with special care in the commentaries of the 
Senchus Mor that the change effected by Saint 
Patrick was, to let the murderer be put to death as 
before if no eric could be obtained, but to send his soul 
to heaven ; and it adds, '^ for retaliation prevailed in 
Ireland before Patrick, and Patrick brought forgive- 
ness with him." "At this day we keep between 
forgiveness and retaliation, for as at present no one 
has the power of obtaining heaven, as Patrick had at 
that day, so no one is put to death for his intentional 



206 THE BRBHON LAWS. 

crimes as long as eric-fine is obtained ; and wherever 
eric-fine is not obtained he is put to death for his 
intentional crimes, and placed on the sea for his 
ignorant crimes and unlawful obstructions." It 
might be inferred from some strong expressions in 
Dubhthach's poems that eric had been abolished 
and the death penalty substituted, as where he says, 
^* Let every one die who kills a human being ; " and 
again, ** Every living person who inflicts death shall 
suffer death." Since, however, the immediately 
succeeding generations of lawyers did not at all 
understand that eric had been abolished, it in fact 
was not abolished, and it would be idle for us to 
understand its abolition. 

There is great diversity of opinion among modem 
writers who have noticed the Brehon Laws as to the 
frequency or infrequency of capital punishment in 
ancient Ireland. One says the death penalty was 
the standing rule, and the payment of eric the excep- 
tion ; while another says that eric was nearly always 
paid in order to spare human life, and that therefore 
the death penalty was rarely inflicted, except for high 
crimes against the king or the state institutions, or 
the disturbance of a public assembly. I rather 
incline to agree with the latter view ; first, because 
of several passages in the law to the effect that no 
one is to be put to death as long as eric is obtained, 
that an assailant is not to be killed if he is known or 
can be arrested, and so on ; and secondly, because I 
have not found in the law any rules subject to which 
the death penalty should be carried out. Hanging 



\ 



CRIMINAL LAW. 207 

is mentioned as having been carried out in political 
but not in private cases. If capital punishment was 
at all frequent, those laws, with their proneness to 
detail, would certainly contain some such rules. 
One of the punishments mentioned incidentally was 
that of placing a man on the open sea, on some small 
punt or wicker basket presumably. This was rather 
exposing a man to death than putting him to death. 
I cannot but think that some of the kindly Gael 
would be on the look-out for an unfortunate man so 
exposed, and, deeming his punishment sufficient, as 
soon as the coast was clear would come to his relief. 
There is ample evidence of various kinds that the 
whole public feeling of Ireland was opposed to 
capital punishment ; and still more was it opposed to 
the taking the law into one's own hands without the 
decision of a court. Such a popular sentiment was 
not law, of course, and never found a place in the 
law ; but during and to the extent of its prevalence 
it was as good as law for all who obeyed it ; and, 
whatever their motive, in a country where the execu- 
tion of the law rested with the people themselves, if 
they did not execute it the law was so far superseded. 
There was no public executioner; and among a 
people who so respected the judgment of a brehon 
the want of a direct death sentence must have 
enfeebled the ordinary man going to imbrue his 
hands in his neighbour's blood, even though that 
neighbour was a murderer. For these reasons I 
conclude that, except for treason to the king and the 
state institutions, our forefathers rarely put criminals 
to death. 



SECTION IV. 

THE MAIQHIN DIGONA. 



AIGHIN DIGONA was 

the name of a precinct of 

ictuary secured by the law 

lund the dwelling-house of 

:ry clansman, within which 

I owner and bis family and 

iperty were inviolable. It 

s sometimes a cleared space 

the boundary of which was marked by trees or bushes ; 

but whether thus perceptible to the eye or not did 

not affect its reality. The English saying that every 

Englishman's house is his castle, is an illustration 

of the spirit that prompted the maighin digona. The 

sanctuary varied in extent with the owner's rank. 

In the case of a bo-aire it extended as far as he, 

while sitting at his house, could cast a cuairsech. 

This is differently described as a spear and as a sledge- 



^mumsrmmmimmm''''^^i'^* 



CRIMINAL LAW. 209 

hammer. It was probably neither, but bore some 
resemblance to both. It consisted of a head of iron 
fastened on a wooden handle " twelve fists " in length. 
The hand was commonly used as a standard of 
measure, being considered four inches across the 
palm at the roots of the fingers, six inches across at 
the thumb with the thumb extended. On the end 
of the wooden handle was a bocm (bokkeen) or horn 
fixed crosswise, just as the Irish peasants are to this 
day accustomed to fix bokkeens on the handles of the 
tools they use. One throw of this instrument deter- 
mined the extent of the bo-aire's sanctuary, twice 
this for the aire-desa, and so on, the distance being 
doubled for each successive grade in the ascending 
scale. Four throws and three score (i.e, sixty-four 
throws) was the extent of the Rig-Tuatha's sanctuary. 
This is said to have equalled a thousand paces. In 
some districts the sanctuaries of chiefs were measured 
by the sound of a bell or the crow of a cock. A 
provincial king might, if he pleased, assert sanctuary 
over the whole extent of the plain on which his dun 
stood. The bards and brehons appear to have had 
the same extent of sanctuary as the rig-tuatha. In 
Christian times bishops appear to have had the same 
extent of sanctuary; whence, perhaps, it may be 
inferred that in pagan times the arch-druids were 
similarly favoured. An ollamh's wand carried round 
and over a fugitive anywhere protected him as did 
the maighin digona. 

The owner of a maighin digona was empowered to 
extend its protection to a stranger flying from the 

15 



210 THE BRBHON LAWS. 

hue-and-cry ; but no stranger could effectually avail 
of it without the owner's consent. If this consent 
was obtained, the effect of the extension was to save 
the stranger from the violent hands of his pursuers. 
They could not pursue or meddle with him further, 
but were obliged to resort to the legal methods of 
bringing him to justice. They could summon him 
before a brehon, and against this the sanctuary did 
not protect him at all. If they violated the protec- 
tion by continuing the pursuit and abusing the fugi- 
tive, they incurred liability to the owner of the 
maighin digona. 

The owner of a sanctuary was bound not to allow 
a fugitive to escape. " He who lets a criminal 
escape is himself a culprit." He might avert 
violence, but not defeat justice. When asserting 
his sanctuary he was bound to give the pursuer a 
guarantee that he would not allow the fugitive to 
escape; and if no actual guarantee was given the 
law presumed a guarantee, and held the owner of 
the sanctuary responsible for the "original offence if 
he allowed the prisoner to escape. 



CHAPTER Vni. 

LEGES MINORES. 

SECTION I. 

MAKRIAGB. 

GICALLY the subject of Marriage 
should have been discussed in con- 
lection with the account of the 
:Ian system. But not being essen- 
tial to that account, its introduc- 
tion there would have further 
confused a subject already suffi- 
ciently obscure. 

Under the clan system one 
would expect to find the marri- 
age laws very important and clearly laid down ; yet, 
notwithstanding the domestic familiarity of the laws, 
the information given on the marriage relation is 
surprisingly scanty, and of a disappointing character 



212 THE BRBHON LAWS. 

too. The ancient Celtic family was not constructed 
like the modem Christian family, and it retained its 
form for some time after the people had become 
Christian. What precisely that form was, and what 
the principle of construction, being matters involved 
in our lack of knowledge of the clan system, are now 
subjects of more or less wild conjecture. My own 
impression is that in reference to the small private 
circle which we should call the family, it is not so 
much knowledge of the thing itself we lack as know- 
ledge of the manner in which the clan organisation 
produced such a condition of things that the law was 
rarely invoked in matters which are of frequent 
occurrence in modem litigation. 

So far as the laws show, the marriage relation was 
extremely loose, and divorce was as easy, and could 
be obtained on as slight grounds, as is now the case 
in some of the States of the American Union. It 
appears to have been obtained more easily by the 
wife than by the husband. When obtained on her 
petition, she took away with her all the property she 
had brought her husband, all her husband had settled 
upon her on their marriage, and in addition so much 
of her husband's property as her industry appeared 
to have entitled her to. This latter would be little 
or nothing if she had been an idle woman, a con- 
siderable amount if she had been a good housewife 
and producer of wealth. It was estimated in various 
ways according to circumstances. Supposing there 
was a quantity of flax or wool on the premises, if this 
remained in the raw state until the woman obtained 



LEGBS MINORBS. 



213 



her divorce she could take away none of it unless 
she was able to establish a claim in some other way, 
which she might do up to the value of one-eighth of 
the raw material. If by her industry she had it " in 
locks/' she was entitled to take away one sixth of it ; 
if combed^ one-third ; and so on ; the assumption 
being that she had made these improvements. In 
making these calculations various matters of set-off 
arose with which we need not trouble ourselves here. 
The law seems to contemplate a woman being 
divorced from her husband and marrying him again, 
and even doing this more than once. Possibly 
divorce is a redundant translation, that the marriage 
was not considered completely dissolved, and that 
separation would be more nearly correct. 

According to these laws a man might purchase a 
wife ; from which it would follow that what a man 
might buy he might also sell. The English laws of 
iEthelbirht and of Ine distinctly provide for the 
buying of a wife. The Irish laws have much more 
to say about the abduction than about the purchase 
of wives. The laws recognised three relations 
between men and women. In the first of these 
stood " a first lawful wife ; " in the second " a first 
lawful adaltrach-woipan ; " in the third '* an adalt- 
rach-woman of abduction," All were legal relations, 
and could not be dissolved except by the will of both 
parties or by legal process. These relations are not 
defined ; but I believe that the first was the only 
one that had a religious sanction, and that the 
second and third were merely civil relations, the 



214 THB BREHON LAWS. 

third being distinctly stuprous and of itself scarcely 
conferring any right. 

Apparently the law on marriage and the dissolu- 
tion of marriage was wholly pagan, and never 
underwent any modification in Christian times ; 
perhaps because it was little resorted to except by 
the wealthy, and they had sufficient influence to keep 
it unaltered. Besides, it is impossible to know how 
we may err in attempting to apply laws to a form of 
society which we do not understand. I am con- 
vinced that the law on this subject must not be 
taken as presenting a true picture of ancient Irish 
life, not because the picture is an unfavourable one, 
but because outside the laws there is overwhelming 
evidence that this legal picture is unjust, that 
singular purity characterised the Irish in the past as 
in the present, and that women occupied in ancient 
times a position as honourable as they occupy now. 
It is one of the many cases in which the law is more 
concerned with the few who invoke it than with the 
many who never invoke it during their lives. 
Probably all the value that should be attached to 
the law on this subject is that it marks the extreme 
limit of libertinism. 





SECTION 11. 



FOSTERAGE. 

OSTERAGE was such an important 

feature of Irish social life that, 

although only a custom, elaborate 

rules relating to it were laid down 

in the laws; and we cannot omit 

noticing the subject, however briefly. 

Fosterage was the custom of placing 

children during their minority in charge 

of other members of the clan. It was 

usually restricted to members of the fine^ which has 

been described and which chiefly consisted of persons 

within the fifth degree of kindred ; but there was no 

strict rule on this point. It was practised by all 

classes, but especially by the wealthy, by chiefs and 

leading men. It is not clear what, besides the force 

of habit, was the motive for it ; but its practice, 

whether designed for that end or not, helped materi- 
als 




2l6 



THE BRBHON LAWS. 



ally to strengthen the natural ties of kinship and 
sympathy which bound the chief and clan or the 
flaith and sept together. Quite apart from law, the 
relations arising from fosterage were in popular 
estimation the most sacred of the whole social 
system, and a stronger affection oftentimes sprang 
up between persons standing in those relations than 
that between immediate relatives by birth. 

There were various kinds of fosterage, and minute 
rules are laid down for all, especially with reference 
to the mode of treating the children in fosterage 
according to the position they were intended to fill 
in after life, the amount payable by the dififerent 
classes for the different kinds of fosterage, the rela- 
tions between ihe child and its foster parents both 
during the fosterage and after^ and various other 
matters. Foster parents were bound under heavy 
penalties to teach their foster children or have them 
taught, whether boys or girls, the branches of know- 
ledge, business, trades, or exercises suited to their 
rank. During the fosterage the foster father was 
liable for injuries and offences committed by the 
foster child, and entitled to compensation for any 
injury done to the foster child. 

A peculiar variety, called literary fosterage, was 
practised by ollamhs. Ollamhs taught pupils of the 
ordinary sort in the ordinary way, for payment or 
for nothing according to circumstances ; but they 
also took a limited number of pupils into a particu- 
lar kind of fosterage combined with pupilage, 
adopted them into their families, and so thoroughly 



LEGES MINORES. 21 7 

imbued them with the spirit of the profession they 
were about to enter that the original family ties of 
those pupils became as if they had never existed. 

As a rule a child was not sent to fosterage until it 
was one year old. " There are three periods at 
which fosterage ends : death, crime, and selection." 
Selection meant marriage; and the legal age of 
selection was reached by girls at the end of fourteen 
years, and by boys at the end of seventeen years. 
Foster parents who had properly discharged their 
duties were entitled in old age to be supported by 
their foster children, if they were in need and had no 
children of their own. 

The law of fosterage seems to search out, ransack, 
and provide for every domestic possibility. It is 
perfectly amazing to find so many rules relating to 
domestic economy, and to contrast the modern 
absence of rule on such matters. Let me give an 
illustration. Expounding the cain law of fosterage 
some worthy ollamh writes in this fashion — " What 
are their victuals ? Le^7^= stirabout is given to 
them all ; but the flavouring (literally dip) which 
goes into it is different ; namely, salt butter for the 
sons of the inferior grades, fresh butter for the sons 
of chieftains, honey for the sons of kings. The food 
of each continues the same respectively until the 
end of one year, or three years [according to the 
kind of fosterage]. Stirabout made of oatmeal on 
butter-milk or water is given to the s6ns of the 
Feini grades, and a bare sufficiency of it merely, 
and salt butter for flavouring. Stirabout made on 



2l8 THE BRBHON LAWS. 

new milk is given to the sons of the chieftain grades, 
and fresh butter for flavouring, and a full sufficiency 
of it is given to them ; and this stirabout is made 
of barley-meal. Stirabout made on new milk is 
given to the sons of kings, and it is made of 
wheaten meal, and honey for flavouring." This 
passage will convey an idea of the small matters 
of which the law took cognizance. Skene, the 
author of Celtic Scotland, says that the word " stir- 
about " is unknown out of Ireland, and quoting this 
passage he substitutes the word " porridge." 




^ ^ ^ ■ ... 'ii 



_j 



SECTION III. 

CONTRACTS AND WILLS. 

ONTRACTS 
between indi- 
viduals do not 
great impor* 
among a people 
sd in clans until 
:sponsibility has 

__„ to give place to 

the responsibility of individuals. The provisions 
of the clan system, coupled with the simple country 
life of our ancestors, left little occasion for contracts 
either of the commercial sort or under seal among 
them ; and the same system so fully provided for 
the devolution of their property after their death 
that there was hardly any occasion for wills. In 
transferring property in goods, barter, which was far 
more extensively employed than true sale, was in 
general more conclusive and gave rise to fewer 



220 THE BREHON LAWS. 

questions fo^ legal decision. Contracts relsLting to 
land were not numerous. They could in gener-ai be 
made only with the concurrence of the sept a.nd in 
the presence of a flaith of high rank called the 
Aire-forgaill. Some written contracts relating" to 
land have been preserved, perhaps from the four- 
teenth century; but while other writings of ap- 
parently less private importance are carefully da.ted, 
these are without date. It is at first sight straxig-e 
that written contracts and wills were so little used 
among a people so addicted to writing on otlier 
subjects. The explanation is, that the clan system 
rendered them unnecessary. They were exceptiona.1 
and foreign to that system, and while it continued 
in effective operation the amount of property affected 
by contracts and wills was probably not great. 
Nevertheless, some rules relating to wills are laid 
down in the Corns Bescna; and the Senchus M5r 
contains a good deal about contracts, from which 
it is clear that warranty on the sale of goods was 
well understood and frequently given and taken ; 
and the importance of a valuable consideration, not 
generally recognised in English law until the last 
century, was perfectly well known in Ireland. 
Anything done without valuable consideration is 
described as done "for God's sake," and imposed 
a very slight if any legal obligation on the other 
party to it. From the expression frequently used 
that "Nothing is due without deserving it," we 
must infer that a valuable consideration was 
essential to the binding of a contract of any kind. 



LEGES MINORES. 221 

I 

It also appears that to form a contract perfect 
and legally binding a witness was necessary, that 
this witness should in general be of the tribe of the 
party on whom the performance of the contract lay, 
that his status was an important legal element, and 
that by acting as witness he incurred the liabilities 
of a surety. 

Many rules are given as to the times within which 
in different circumstances sales might be set aside. 
A contract of two sane adults, with knowledge and 
warranty, might, on fraud being discovered, be dis- 
solved in twenty-four hours. Without knowledge 
and without warranty it might be dissolved for ten 
days after the fraud was discovered. In both cases 
the " knowledge " is that of the buyer. The law 
seems more concerned about the state of the buyer's 
mind at the time of the purchase than about that 
of the seller. 

Ratification of contracts made by persons under 
subjection and therefore not fully entitled to contract 
was also well understood. '^ One is held to adopt 
what he does not repudiate after knowledge, having 
power." 

From a passage I have quoted it would appear 
that, as in English law until recently, a married 
woman was merged in her husband while he lived, 
and could not be bound by any contract made by 
her. This, however, is subject to some qualifica- 
tion, for it is clear from other passages that a 
woman could contract, in the presence of her 
husband, to the amount of her own honour-price. 



I 



222 THE BRBHON LAWS. 

Few married women bad either taste or occasion 
for asserting what are dow called women's rights. 

A boy was deemed to have no sense until he was 
seven years old, only half sense from seven to the 
end of his fifteenth year. Even after this period 
he had strictly no power to contract so long as 
he remained a member of his father's household ; 
but if he did make a contract with bis father's 
knowledge it was binding on the father unless 
promptly repudiated. If once ratified by the father 
it was treated as his contract. 

Monks on becoming such lost the capacity of 
contracting; but a monk who became abbot, or 
was appointed to manage the temporal affairs of 
his community, was allowed to contract on behalf 
of the community. 

The non-free had very meagre powers of contract- 
ing, and the lowest grade of them had none at ail. 



\ 



NE does not expect to find much 
in these ancient laws relating 
specially to artisans. The ordi- 
nary law applied to them as to 
other people, and they were not 
sufficiently numerous to call for 
special treatment. We are told 
that their social status was determined by the 
rank of those for whom they worked. If this was 
so, its effect in practice probably was to make the 
position of artisan to a chief an object of ambition 
in each particular craft and the reward of superior 
skill in that craft ; and if the artisan continued to 
progress, his status would rise pari passu with his 
skill — a very just arrangement. Workers in gold 
and others who practised what might be called fine 
arts, the results of which were required only by the 



\ 



224 THE BRBHON LAWS. 

wealthy, must under the same arrangement have 
stood high in the social scale. Smiths, too, ivere 
always held in high esteem. Some of the more 
important artisans were supplied with free lands for 
their support ; others were paid wages, which appear 
to have been fixed, in theory at least, by the law. 
We have already noticed the power of artisans to 
form guilds or partnerships in virtue of which they 
could acquire political and social rights; an<l we 
have also noticed some liabilities connected ivith 
their trades, in the chapter on crime. 

It was customary with artificers, on completing a 
work and delivering it to the employer, to pronounce 
a blessing on it. So strong was the feeling on this 
subject, that a workman who refused to give the 
blessing was fined. It would seem that the first 
who saw a work newly finished by another was also 
expected to bless the work. This was extreme 
sensibility; but as the blessing was general the 
shock caused by its omission was great. When I 
first came to London I was shocked on meetings 
persons asking alms without adding the words, '* for 
God's sake," and taking alms without uttering a 
prayer in return ; for neither is ever omitted in 
Ireland. 



SECTION V. 



HERE does not appear 
to have been at any 
1 ancient Ireland one 
>rm of oath or mannvr 
iring in legal proceed- 

-„- /s do not tell us much 

of how our pagan fathers swore. There is no doubt 
at all that they did swear ; and, if writings not of 
a legal character are to be trusted, they swore on 
solemn occasions by the sun, moon, wind, and other 
elements, the dew, the crops, and the countenances 
of men. Ugaine Mor, before his death in a.m. 4606, 
" exacted oaths, by all the elements visible and 
invisible, from the men of Erinn in general that 
they would never contend for the sovereignty of 
Erinn with his children or his race " (Four Masters). 
In Christian times a similar variety of oaths pre- 
16 «s 






226 THE BRBHON LAWS. 

vailed, all dififering in legal value. The oath of 
highest value was that taken on the Gospels ; but an 
oath taken on a relic, on a shrine or reliquary, or 
on a bishop's crosier, was also deemed very solemn 
and binding. Again, the value of the oath differed 
according to the place in which it was taken. 
Sometimes it was taken in the house of the person 
swearing, sometimes at the grave of those dearest to 
him, sometimes in a court of justice, sometimes in a 
church before the altar. That at the grave was 
probably of pagan origin. In some cases the oath 
was not a simple oath, but a triple one ; the person 
swore first standing, then sitting, and then lying, as 
he spent his life. 

" The king excells all in testimony, for he can, by 
his mere word, decide against every class of persons, 
except those of the two orders of religion and learn- 
ing who are of equal rank with him.'^ This is still 
generally so in monarchies. 




CHAPTER IX. 

NATIVE, NOT ROMAN. 

T is said in the State Papers by an English 

official in Ireland in Queen Elizabeth's 

reign that, " this Feinechas is none other 

than the sivill law ; " and the 8a)ang is 

occasionally repeated even to the present 

time. That the statement is, however, 

none other than incorrect, might easily be 

shown by going through both the Civil 

Law and the Irish law seriatim. The 

present little treatise, without being at all 

designed for that purpose, will render this 

sufficiently obvious. There are no two systems of 

law of which I have any knowledge which do not 

contain some points in common. It would be 

strange indeed if men devising rules for the exten- 

sive field of human conduct, and for determining all 

sorts of rights and obligations, did not happen to hit 

upon the same expedient occasionally. Their doing 




228 THE BRBHOM LAWS. 

SO proves their common humanity. To prove the 
alleged derivation much more is required. But the 
fact is, that in the Brebon Laws such coincidences 
with Roman Law are really fewer than might be 
expected without derivation at all. The coincidences 
with Hindoo Law are actually more numerous ; yet 
no one suggests that the Brehon Laws are derived 
from the Hindoo. 

Some rules of church law, itself based on the later 
Roman Law, were introduced obviously by the 
Christian clergy, and affected mainly themselves 
and their interests. They are fewer and less im- 
portant than might have been expected, owing to 
the Celtic organisation which the Church early 
assumed, and for many centuries retained. There 
is also the supposed resemblance which the collec- 
tion of laws called the Senchus M5r bears to the 
Roman collections called the Digest and the Pan- 
dects. To press this as a proof of derivation would 
be absurd, for there is really no more in it than in 
the resemblance in distant perspective between two 
trees in a forest The laws were collected as they 
existed; and if when collected they happened to 
resemble some other collection, there was nothing 
to wonder at, the laws could not help it, and it does 
not prove their derivation from that other. Analogies 
are very tempting, but often misleading ; and such a 
superficial analogy as this would be a very unsafe 
guide. If the Brehon Laws had been at all derived 
from Roman Law, the resemblances would have been 
far more numerous, intimate, and . vital, the whole 



I3*« 



NATIVE, NOT ROMAN. 



229 



juridical structure wopld probably have been different, 
and with the law itself some of the Roman technical 
terms woulti have been adopted, as in all countries 
that have really copied from Roman Law. None of 
those terms are found in the Irish manuscripts. 
Many of the Irish laws are as old as the Roman 
Law itself. Whether they are good or bad, credit- 
able or otherwise to our race, they are essentially, 
substantially, and characteristically Irish. Sir 
Samuel Ferguson expressed the literal truth when 
he wrote that ** The Romjin (or Civil) Law is hardly 
traceable in them, except as regards ecclesiastical 
affairs, and that sub modo only." 

Without desiring to suggest whether they would 
or would not have been better if they had been 
derived from Roman Law, it may be interesting to 
point out that the Irish laws were in several respects 
more humane than the Roman. The Irish flaith- 
fine never at any time had power of life and death 
over the members of his household, as th6 Roman 
paterfamilias unquestionably had in early times. 
Then with regard to the treatment of strangers : at 
Rome, for a long time, an alien was an enemy, who 
might be ill used, whose property was res nullius 
which any Roman might seize, and who had no locm 
standi whatever before a legal tribunal. In Ireland 
a stranger was a person entitled to sympathy, his 
property could not be taken from him, and not alone 
was he heard in a court of law, but he was allowed 
to choose his judge. "Whenever a person comes 
over the sea to prosecute a cause, he shall have a 



230 THE BRBROH LAWS. 

choice of the Brehons of Erino ; and when he shall 
have come across the boundary of a province, he 
shall have his choice of the brehons in the pro- 
vince." We have already seen that unjust evasion 
of a stranger was punished as fraud. 

There was much resemblance between the Irish 
taws and those of ancient Britain, so far as the 
latter can be discerned through the native Welsh 
laws, between which and the Irish there is a good 
deal in common. All British laws were modiBed 
under Roman sway, which Ireland escaped. Of 
course the laws of the Gaels of Scotland were 
originally our laws transferred to Scotland. They, 
however, underwent considerable change, for feudal- 
ism was vigorously forced upon Scotland in the 
Middle Ages. 



CHAPTER X. 
CONCLUSION. 

{Hihcmici ; Thi Conclusion Begins Dmm Here.) 



HE Danes were the 
first wreckers of 
Gaelic institutions in 
. Though their power 
oken at Clontarf, so 

««v., » v.^«.... w. Jrian and his son, was 

destroyed the rising hope of an immediate and 
thoroughly national restoration of Celtic institutions 
and forms which had been interrupted. The inter- 
ruption becoming permanent, the spell of attachment 
was broken, and some of those institutions and forms 
became definitely extinct. Instead of a speedy 
return of vigorous national life, there was a state of 
doubtful oscillation between relapse and conva- 
lescence. Recovery was not complete when the 



232 THE BRBHON LAWS. 

Anglo-Normans came and put an eternal period to 
its progress. The Celtic system was indeed main- 
tained over the greater part of the country ; but 
only in its shattered and incomplete condition, and 
only with a view to the interests of isolated and 
rival communities or rival individuals ; never 
universally or with a view to the interests of the 
nation as a whole, and never with the old unques- 
tioned power and full reverential obedience. The 
Anglo-Irish, wherever they were sprinkled through- 
out the country, except the Pale, did in the main 
adopt Irish laws, language, dress, and customs ; and 
such of them as attained sufficient power became 
Irish chiefs, and appointed their own brehons in the 
Irish way. But the nation considered as a political 
unit had lost the essential organism and attributes 
of a state, and the statesmanship of England was 
directed to the prevention of re-organisation and the 
fomenting of disorder. In obedience to this states- 
manship a so-called parliament, consisting mainly of 
self-elected English officials, was held in Kilkenny 
in 1367, and an Act was passed, written not in Irish, 
nor even in English, but in Norman- French, brand- 
ing the Irish as enemies, and penalising the adoption 
of their dress, manners, language, and laws. 
Various other measures conceived in a like spirit 
followed. They were not immediately successful in 
their direct object ; but they were too successful in 
sowing discord among people who wanted only to be 
let alone, and they armed and created an opportunity 
for miscreant adventurers hungry for a morsel of 



CONCLUSION. 233 

prey. This latter was the main object of those 
measures. The trade of fomenting disorder throve 
apace. It was the only trade that did. The Gaelic 
race, with its peculiar institutions, national and 
domestic, was kept disorganised until disorganisation 
became its normal condition. It was not so much 
that civilisation was undergoing a change as that it 
was being strangled. There were two nations in the 
land, animated not by a desire to evolve a better 
condition of things, but by a mutual desire to thwart 
each other at every hand's turn. Neither was able 
to establish a central government of its own of suf- 
ficient potency to enforce its own views. Each was 
able and willing to prevent the other from doing it. 
It is doubtful that either correctly understood the 
true remedy of the evil they jointly created ; and 
certain that they would not have adopted the true 
remedy if they had understood it. All over the 
country, except the Pale, the Brehon Laws, like sun 
through storm, prevailed in some way ; for other law 
there was none. 

The so-called parliaments held before the reign of 
Henry the Eighth were organised mainly by hungry 
adventurers and in their interest, and consisted of 
themselves, their friends and connections in office, 
and knights of the Pale. Hardly any Gaelic Irish- 
men attended them, and many were unaware of 
their existence. During the reigns of Henry the 
Eighth, Edward the Sixth, and Mary, a semblance 
of English institutions gradually grew upon the 
country, not by reason of their superiority, but 



234 '^H^ BRBHON LAWS. 

partly with the hope that their adoption would, as a 
concession to English prejudice, contribute some- 
what to peace, and partly owing to the enforced 
decay of all that was native. I need not tell how, 
in Elizabeth's bloody reign, the hope was blasted, 
the work of destruction carried on by fire and sword, 
craft and poison, and Teutonic institutions set up on 
the ruins. The great transformation was completed 
under James the First, and confirmed and rendered 
irrevocable under Charles the First, Cromwell, and 
William the Third. Such old brehons and ollamhs 
as may have been then living sank into obscurity 
and into the grave without successors. Night had 
fallen on the Gael, and Justice as a living presence 
had been banished from among them. 

In the third, fourth, and probably all future 
volumes of the Brehon Laws the student will find 
elaborate introductions written by the editors, no 
doubt in good faith, for his guidance. From the 
same volumes he will miss the simpler and safer 
Gaelic guidance of O' Donovan and O'Curry. He 
will soon realise that he has passed into the hands 
of men of Teutonic instinct, training, and sympathies, 
and under alien, if not unfriendly guidance. Should 
he be so much in earnest about his subject that his 
guides do not succeed in disgusting him with it, as 
they are apt to do, he will begin to realise that it 

" would have been just as well for his progress and for 
their reputation if those elaborate introductions had 

* never been written. When he has begun to relish 
and digest the Brehon Laws in spite of the introduc- 



CONCLUSION. 235 

lions, his success in acquiring a knowledge of them 
is assured, and the rate of his further progress will 
correspond with the rate at which he frees himself 
from their guidance. 

As a classic poet may be translated in such a way 
as to make him look ridiculous, so it is conceivable 
that of two presentations of these laws equally true 
in substance one may be positively unfair. Without 
being intentionally unfair, those introductions are 
distinctly so in effect. Originating in a Teutonic 
mind, they are based on the initial assumption that 
the Teuton alone of all mankind is capable of devising 
and attaining perfection in legal and political institu- 
tions, and that the Irish Celt is incapable of either 
devising them or adopting them when devised by 
others. The notion is so grotesque as not to be 
worth contradicting. But why has its expression 
been given a place in our national documents ? It is 
clearly the offspring of mental bias, however acquired 
or however unconscious. The sum paid to this un- 
Irish editor was, I fear, too small ; yet it was prob- 
ably quite as much as his Irish predecessors had been 
paid, and so long as he did take it one cannot help 
thinking that he might have been a little more polite 
towards a nation good enough to pay it. 

Of many passages in which the Teutonic type is 
set up as the standard of perfection and anything 
differing from it stamped as barbarous, one sentence 
taken at random will be quite enough as a specimen. 
** An act is criminal in the correct use of the word 
when it is regarded as an offence against the State." 



236 THE BRBHON LAWS. 

Observe the word " correct" What does it mean 
here ? It means " English." Or, expanded, it means 
** In accordance with the present English theory of 
crime, in which I have been instructed." The editor 
seems quite oblivious of the fact that if he had been 
instructed in a different system his *' correct " would 
have a different meaning, that if he had been in- 
structed solely in English law of a past age his 
" correct " would have a different meaning. Which of 
these meanings, then, would be truly correct? I 
think none of them. In such matters there is no 
such thing as perfect abstract correctness universal 
and eternal. The most correct in one set of circum- 
stances might be the most incorrect in another. To 
set up any one system, however good, as the only 
correct system for all mankind in all ages, is not 
alone incorrect, but is absurd arrogance. Our 
ancestors happened to think, as some of ourselves 
think, that a wrongful act, knowingly and wilfully 
committed against another person, contained in itself 
all the essentials of a crime, irrespective of the 
manner in which the State regarded it. Of course 
this alien editor would object that this is confounding 
the moral view with the legal, a thing abhorrent to 
an English lawyer. A brehon would ask in astonish- 
ment. What harm if they are confounded ? If the 
moral view is enforced by law it becomes the legal 
view as well, and there is harmony instead of un- 
natural antagonism. 

An exponent of Gaelic law who can, without seeing 
the impropriety, write of English law as '* our ancient 



CONCLUSION. 237 

law," as Mr. Richey does, appears to me to stand 
self-condemned. It is a confession, if it be not a 
boast, that he must not be regarded as a native 
exponent. Deliberately taking up the position, not 
of a friendly editor, but of a foreign and more or less 
adverse critic, he scrutinises his subject from aloft or 
from without. To him these are at best ancient 
laws, and at that only Irish ancient laws. To us 
they are much more. They are Our Ancient Laws 
emphatically. Nations, like individuals, have their 
heirlooms, which they do not like to see disrespect- 
fully used* If a Scotch advocate were stupid enough 
to commit in a treatise on Scotch law such a blunder 
as that just pointed out he would be completely dis- 
credited. It is only for Irish laws this treatment is 
considered good enough. 

The matters in which the foreign mind ot the 
editor manifests itself are mostly small, taken singly, 
but scattered over a volume or two, positively in 
statements and negatively in omissions, they produce 
a lasting effect. Even defect of knowledge which 
hundreds of living Irish men and women could have 
supplied is to be met with ; as where a note of in- 
terrogation is inserted after the word dilesCf a form 
of duileasgf the name of a sea-plant well known 
under both its English and its Irish names all round 
the coast, and to be seen on the stalls of market 
women. The editor apparently did not condescend 
to ask information from such people. 

To acquire perfect knowledge of a difficult subject, 
as to acquire skill in a difficult art, one needs the 



238 THB BRBHON LAWS. 

inspiration and guidance of some degree of afTection, 
or at least tolerant sympathy. Unless he takes the 
ideas to himself, and warms them in his own breast, 
they are like stricken roses which never open, and 
he inevitably misses or misunderstands some portion 
of them. To be able to present in the Bnglisb 
language a true picture of the Gaelic laws, one 
requires much more than philological knowledg^e, 
literary skill, and a keen legal perception. He 
obviously requires to imbibe the Gaelic spirit to some 
extent if it is not naturally his. Why not ? Other- 
wise '* it is the lark and not the nightingale." He 
requires a heart attuned to the Gaelic pulse, a mind 
capable of understanding, for the time at least, the 
Gaelic mode of reasoning: and this necessity is 
rendered not less imperative but more so by the fact 
that the Gaelic pulse now beats low and has done so 
for some time past. It does beat still, and may even 
yet beat strongly once more; for it is the native 
pulse of many who now know it not. Still " There is 
many a man of the race of Conn in beautiful Erinn 
of the smooth grass," and many more elsewhere. 
No one can expound those laws unless he under- 
stands them, and to understand them one must 
treat them respectfully, somewhat as one would 
treat flowers he bad found preserved amongst the 
leaves of a deceased friend's book, or the cerements 
of a mummy. They will not yield their sweetness to 
him if he tosses them disdainfully as with a pitch- 
fork. It is a privilege to be allowed to meddle with 
them, and ought not to be done as though it were an 



CONCLUSION. 239 

irksome task grudgingly performed. The editor of 
whom I complain has not squandered any affection 
on these laws. What one does not respect he does 
not warm in his bosom. One does not imbibe a spirit 
he despises. 

I am quite aware that opinions such as mine have 

to contend, and often to contend in vain, against 

the universal disposition, unusually developed in the 

Teutonic temperament, to spurn the suggestion that 

any people have peculiarities which outsiders cannot 

understand as well as themselves. This disposition 

is fortified by the acknowledged importance of seeing 

ourselves as others see us. The vision of others 

may be true, while our own may be partial. The 

opinions of an unfriendly critic may be sound, so far 

as he understands the subject. My contention is, 

that the principle of seeing ourselves as others see 

us may be carried too far on one side, that so far as 

it is good it is universally applicable, that Teutonic 

peoples do not pay us for telling how we see them, 

that there is much in human life and manners which 

outsiders never can by any means perceive, and not 

perceiving never can understand or describe, and 

that the translation of our own laws at our own 

expense was an occasion when the Gaelic view was 

unquestionably the view that ought to have been 

presented above all others. 

No one presumes to claim that either the laws or 
the brehons were perfect. They would indeed have 
been wonderful, and out of place in this world, had 
they been perfect. It is very easy to point out 



240 THE BREHON LAWS. 

imperfections in both. The laws were in many 
respects painfully restrictive, in many crude and 
seriously defective according to our conceptions. 
But why should we expect the Brehon Laws, any 
more than other Uges barbarorutn with which they 
may be classed, to suit modern conceptions or to be 
adaptable to the complex texture of the modem 
world ? They were never intended for that. If 
they suited ancient conceptions they fulfilled the 
object of their institution. That they did this to as 
large an extent as any other laws, past or present, 
is sufficiently established by the enormous length of 
time during which they continued in force, and in 
force, remember, by the will of the people. In con- 
sidering them it should be borne in mind throughout, 
but especially when any startling feature is met 
with, that it is not with modern laws they ought to 
be compared, but with those of their own time. 
This test they bear well, so far as it can be applied ; 
and from such a comparison we have no occasion to 
shrink. But the fact is that few modern nations 
possess material sufficiently old for instituting this 
comparison, and what they do possess of ancient 
date is mainly concerned with crimes. To be sure, 
the Irish laws ought to have been gradually adapted 
to the changed conditions of the people. But then 
they would have lost in the process that archaic 
character in which their chief interest now lies. 
Even now, tried by our modern consciences and 
searched by our modern lights, they afford sufficient 
evidence that all perfection is not modern. Side by 



mmm 



CONCLUSION. 241 

side with the crude, and equally archaic with it, are 
some principles which modern legislators might 
adopt with advantage. The desire just now so 
prevalent to found courts of arbitration and concilia- 
tion is the best practical tribute that could be paid 
to the wisdom of our ancestors, as shown in the 
consensual character of the brehon's jurisdiction. 
Every competent and impartial reader of these laws 
will admit that their merits far outnumber their 
defects, that they were animated by a spirit of 
justice and a desire to secure fair dealing, especially 
to those who needed that security, and that they 
were highly creditable as an attempt to harmonise 
conflicting rights. These must always be important 
objects of law ; and that they should be attained in 
each age and country in its own way is the important 
thing, not the manner of their attainment. The 
development of legal ideas was not uniform in 
Ireland. It never has been uniform anywhere. 

The remarkably just character of the Brehon 
Laws has been attributed to the fact that for cen- 
turies they were not meddled with by rulers or 
ruled, but were moulded to a large extent by the 
brehons, who occupied a neutral position. This, if 
it be correct, adds to the merit of the brehons when 
the reader is reminded that throughout the whole 
range of English law what is judge-made can nearly 
always be traced by its execrable character. 

In almost every respect the Brehon Laws bear 
comparison very well with English laws not so old. 
English laws from the time of Alfred, and perhaps 

17 



342 THB BRBHON LAWS. 

before it, down to the present day, have been con- 
stantly disfigured by hardships and disabilities 
imposed upon people on account of their religion or 
their want of religion, and by ghastly, absurd, and 
generally vain efforts to force people's consciences. 
0/ course there is not a trace of these absurdities to 
be found in the Irish laws. Our ancestors, like our- 
selves, had faith in reason and good example, not in 
the thumbscrew. They thought that penal laws 
ought to be applied only to criminal acts, and that 
the consciences of harmless people ought to be let 
alone. 

The odious system of torture called the ordeal, so 
common in the Middle Ages, by which evidence was 
roasted or boiled, according to taste, out of unwilling 
witnesses, and confessions of guilt wrung often from 
persons perfectly innocent ; this was never known in 
Ireland, except possibly in the Pale. There is not a 
word about it in the Brehon Laws. Englishmen, 
never short of an excuse when their own national 
reputation is concerned, have no better to offer for 
the practice of the ordeal than that it was universal. 
Even this poor excuse, however, is not valid ; for, 
small though Ireland is, a thing never practised 
there was not universal. 

Now with more direct regard to the brehons and 
ollamhs, any modern reader will be at once struck 
with the want of scientific arrangement in their 
work, and with the manner in which they open a 
new subject, in the middle, so to speak, instead of 
at the beginning as we should desire. Language 



CONCLUSION. 243 

apparently simple is found to be most difficult and 
disappointing for want of the primary foundations 
and proper definitions. Initial facts and principles 
are assumed, not explained. We constantly feel 
that only a part of the law is revealed to us, the 
writer assuming that we know the rest. Nowhere 
is an attempt made to grapple with any branch of 
law and give a complete exposition of it throughout. 
It is easy to point out defects like these, because th^y 
lie on the surface, and are the first a reader 
encounters. They are serious obstacles, and may 
disgust him ; but they do not affect the law itself. 
They are but its shell, a rough shell, which must 
be cracked before the kernel can be reached. To 
murmur against the brehons for these defects would 
be about as reasonable as to murmur against them 
for not having delivered judgments into phonographs. 
This is the nineteenth century, not the tenth. The 
brehons did not live in a scientific age. Are not the 
very defects of their work interesting, if not instruc- 
tive, to us ? Should our little difficulties prevent 
our appreciating the enormous difficulties they had 
to surmount ? Though most of the matter we have 
been considering was written more than a thousand 
years ago, much of it is marked by a clearness of 
expression which modern Acts of Parliament do not 
always attain. The connection of the brehons and 
ollamhs with the law was too long and intimate to 
allow of our entirely withholding either praise or 
blame from them as the laws may seem to merit. 
But before blaming we should be very sure that we 



244 'I'HE BRBHON LAWS. 

understand. We should remember that with our 
best efforts we can never acquire more than a 
partial knowledge of these men and their laws. We 
can never successfully free ourselves from our own 
surroundings, and cast ourselves back into their 
world, or revive its conditions around ourselves. 
The brehons and oUamhs knew, far better than we 
can ever realise, what an inadequate picture of 
themselves and their laws these writings would 
present if a time should come when no other picture 
remained, nor living voice to tell the mysteries of 
this, wherein it is full, wherein it wholly fails. 
That time has come, and to it and our imperfect 
vision much that is distorted or unintelligible may 
very justly be attributed. 

The student of legal history, Roman and English, 
will turn from exasperating auspices and fantastic 
ceremonial, and all the cruel delay and injustice of 
which these were the guilty occasion, and will give 
credit to the brehons for their manly good sense in 
not inventing artificial meshes for their own feet and 
the feet of those who sought justice at their hands. 
That a man had moral right on his side did not 
matter a pin's point to the old-fashioned judges of 
Rome and of London if their fantastic technicalities 
had not been complied with. In no instance in the 
Brehon Laws have I met with an outrage upon 
justice for the sake of mere form, a thing quite 
common under the Formal system at Rome, quite 
common in England until a few years ago, and 
possible even now, as in the case of Kendall versus 
Hamilton. 



CONCLUSION. 245 

The brehons of the Gaelic decadence, owing 
tnainly to political causes, have left us little whereby 
to gauge their capacity. For this it would ill 
become us to blame them. It is a mistake to 
suppose that to transmit judgments to posterity to 
criticise is at any time the highest duty of a judge. 
If in the disorder of their times they managed still 
to make just laws prevail amongst their contem- 
poraries against the law of the strong hand, they 
performed their whole duty, and a difficult one it 
must have been. Through no fault of theirs their 
rulings, once executing themselves proprio vigore, 
were no longer universally obeyed. Their sphere of 
influence was shrinking, and with it virility of 
thought. We, however, cannot be indifferent to the 
fact that if they had neither the ability nor the 
opportunity to add to or develop the laws, they had 
at least the judgment and grace to preserve them. 
It is easy to be wise after events, and to point out in 
what respects things might have been better had 
they been managed differently. It is easy, but not 
brave, to censure those who cannot return to explain. 
Not even the wise men of the nineteenth century 
can penetrate far into the future, nor do they always 
understand the hidden springs of their own conduct 
or the drift of their own acts ; and in their most 
pretentious efforts they may be merely spoiling some 
possibilities of the future* Since the days of the 
brehons man^s powers and purposes have increased 
and multiplied tenfold. We shall not be deemed 
unworthy members of society if, with our enlarged 



246 THE BRBHON LAWS. 

facilities, we deserve as well of our own age as the 
brehons did of theirs. 
1 Law at best is not the most fascinating of sub- 
j; jects. Very handsome things have been said of it, 
/| and justly; but they have been said mostly by 
lawyers. It is, among other things, the bulwark of 
the righteous, the shield of the weak, the noble 
science of discovering in circumstances of g^eat 
complexity what is just, and making the [balance 
play on its pivot with strict impartiality. It may 
also be considered as a very vulgar business, mainly 
connected with, and sometimes debased to the pro- 
motion of, what is sordid and criminal. Whichever 
view be taken, the importance of the law of a country 
cannot 'be disputed. There are many important 
things connected with ancient Ireland yet to be 
learned ; few more so than that which we have been 
considering. A nation's law is an irrebuttable wit- 
ness to its character, a mirror that cannot be dis- 
claimed. We should in justice remember that it is 
in general an unfavourable witness, an unflattering 
mirror. It reflects cases, disputes, quarrels, and 
lends undue importance to the comparatively few 
members of the population who figure in them, while 
almost wholly ignoring all the sweetness and good- 
ness of human life and the vast numbers who pass 
through life without a legal dispute at all. It takes 
little notice of duties faithfully discharged, but is 
endlessly garrulous about obligations broken. It 
provides against offences which are rarely com- 
mitted, and disregards the good acts with which 



CONCLUSION. 247 

the hours are studded. In a vast flock, which it 
apparently sees not, it spies with eagle eye the 
distempered kid. It is so little concerned with 
quiet folk who all their lives do right and justice 
that if left to legal reading one might suppose they 
did not exist ; so much concerned with wrong and 
wrong-doers that if left to legal reading one might 
judge the world very uncharitably indeed. These 
remarks in the abstract apply neither more nor less 
to Irish than to other laws. But in the case of other 
laws that are now read, the effect on the reader's 
mind is usually counteracted by other miscellaneous 
literature of the nation to which the laws belong, 
while it is likely that many who will read this little 
treatise on Irish laws will not be fortified with much 
miscellaneous reading in reference to ancient Ireland. 
Persons for whom the quiet voices of ancient peace 
and harmony are wholly still, and to whom the best 
types of our race are wholly unknown, will here make 
acquaintance with ancient disputes and with the 
aspects of men in contest. These, unrelieved, will 
linger in the memory, and these alone the mention 
of ancient Ireland will recall. In truth, they formed 
little of the real ancient Ireland, and I now feel 
guilty of having in some measure contributed to 
their posthumous importance. 

Haying read some of those ancient laws, and made 
some notes as I proceeded, the thought occurred to 
me that, although the subject is dry and harsh as 
all laws are, and although it is stale and obsolete 
whigh other l^ws arc not, still there might be some 



248 THE BRBHON LAWS. 

who would take sufficient interest in the subject to 
read my notes if reduced to order. On comparing 
the notes and setting them together, as so many 
fragments of a broken vessel, I found that consider- 
ably more than half of them were utterly useless for 
my purpose, belonging apparently to vessels of which 
I had no conception, and quite irreconcilable as parts 
of one structure. All the fragments were doubtless 
genuine, if one only knew their respective times and 
districts. In the vast expanse of time over which 
those laws extend many varieties of law and practice 
must necessarily have arisen from local, temporary, 
and accidental causes. To follow all these and treat 
them adequately would demand several volumes. 
Hence many fragments, in themselves interesting, 
had to be sacrificed, and some whole branches of 
substantive law, as the law of taking possession of 
land, and the very important law of suretiship, had 
cryyvu^Ctt^ to be either wholly admitt ed or compressed into a 

few obscure sentences of a sub-section. The rest I 
do not pretend to have treated as they deserve to be 
treated by an Irishman and a lawyer ; and though 
availing of the assistance of those who have gone 
before me, even of some with whose views I herein 
expressly disagree, I may possibly have gone astray 
myself on some points. Other writers retaining 
fragments which I reject, may, with perfect fidelity 
to truth, have educed, or may yet educe, legal 
structures and conceptions of Brehon Law incon- 
sistent with mine. I claim no more than to present 
the laws as I understand them, well aware that even 



CONCLUSION. 249 

in my own conception of them there are points 
difficult to reconcile and explain. I am also quite 
a>vare of my silence on several legal matters on 
which information is very desirable. The laws 
themselves are silent on these matters, and the 
importance we attach to them may be due to our 
own surroundings. If any one should open this little 
book with great expectations he will close it with 
disappointment correspondingly great. I have neither 
treated the whole subject descriptively, nor entered 
into an exhaustive criticism of any part of it. To 
do either satisfactorily within this compass were 
quite impossible. It is not every man can put a 
gallon of liquid into a pint bottle. My aim is to 
interest the general reader, to put within the reach 
of all who desire some knowledge of those laws a 
convenient synopsis of their leading features, with 
some corrections of current errors, and above all to 
induce some student better equipped than I to under- 
take a thorough examination of those laws and treat 
the world to a work really worthy of the subject and 
calculated to take the wind completely out of my 
small sail. To succeed in any one of these respects 
would be not to have worked in vain ; success in the 
last mentioned is the summit of ray ambition. 



END. 



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